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TEAM CODE: C

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

ORIGINAL WRIT JURISDICTION

PUBLIC INTEREST LITIGATION

W.P. (CIVIL) No. OF 2020

UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIANA

Council for Protection of Human Rights ......................................................... PETITIONER

v/s

Union of Indiana .......................................................................................... RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE AND HIS COMPANION

JUSTICES OF THE SUPREME COURT OF INDIANA

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MEMORANDUM ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS

 TABLE OF CONTENTS .......................................................................................... 2

 LIST OF ABBREVIATION ..................................................................................... 3
 INDEX OF AUTHORITIES .................................................................................... 4-
7  STATEMENT OF
JURISDICTION .......................................................................... 8
 STATEMENT OF FACTS ......................................................................................... 9
 ISSUE ...................................................................................................................... 10
 SUMMARY OF ARGUMENTS .............................................................................. 11
 ARGUMENT ADVANCED ................................................................................ 12-
33
 PRAYER… .............................................................................................................. 34

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LIST OF ABBREVIATIONS

AIR All India Reporter

AIR SC All India Reporter Supreme Court
Art. Article
Admn. Administration
AP Andhra Pradesh
CPHR Council for Protection of Human Rights
Cr. Criminal
Cri LJ Criminal Law Journal
Del. Delhi
Distt. District
Ed. Edition
Govt. Government
Hon’ble Honorable
IPC Indiana Penal Code
J. Justice

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LR Law Reports
MP Madhya Pradesh
Ors. Others
PIL Public Interest Litigation
Rly Railways
SC Supreme Court
SCC Supreme Court Cases
SCJ Supreme Court Journal
SCR Supreme Court Reporter
SP Superintendent of Police
UP Uttar Pradesh
UOI Union Of Indiana
W.P. Writ Petition

INDEX OF AUTHORITIES

CASES

1. A.B.S.K. Sangh(Rly) v/s UOI, AIR 1981 SC 298 .................................................... 12

2. A.P.H.L. v/s Sangma, AIR 1977 SC 2155 ................................................................ 23
3. Anandilal Chourasia v/s UOI, AIR 2008N MP 257 (FB) ......................................... 15
4. Ashraf Khan Alias Babu Munnekha Pathan and anr. v/s State of Gujarat, (2012) 11
SCC 606… .............................................................................................................. 17
5. A.K. Gopalan v/s State of Madras, AIR 1950 SC 27… ............................................
19
6. A.R. Antulay v/s R.S. Naik, AIR 1992 SC 1701 ...................................................... 18
7. Ahmed v/s State, AIR 1951 All 459 ........................................................................ 26
8. Air India v/s Nergesh Meerza, AIR 1981 SC 1829 ...................................................
23
9. Balakrishnan Nair v/s Chief Secretary to the Government of Kerala, W.P.(c) No.
2329

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of 2018… ................................................................................................................ 13
10. Bar Council of Maharashtra v/s S.Dabholkar, (1976) 1 SCR 306… .........................
14
11. Bishamber Dayal Chandra Mohan v/s State of U.P., AIR 1982 SC 33 ......................
27
12. Bennett Coleman & Co. v/s UOI, AIR 1973 SC 106 ................................................
27
13. Bharatbhai v/s State of Gujarat, AIR 2002 SC 3620 .................................................
17
14. Babulalparate v/s State of Mahrashtra, AIR 1961 SC 884 ....................................... 25
15. Boos v/s Barry (1988) 485 US 312 .......................................................................... 27
16. Chintanmanrao v/s State of M.P. AIR 1951 SC 118 ........................................... 25, 27
17. Cf. Kartar Singh v/s State of Punjab, AIR 1956 SC 541 .......................................... 27
18. Chhadayamurty v/s State AIR 1952 TC 217 (FB) .................................................... 22
19. Dattaraj Nathuji Thaware v/s State of Maharashtra and Ors., AIR 2005 SC 540 .......
14
20. Devendra v/s State of Rajasthan and ors, W.P. NO. 3627/2018… .......................
18,19
21. D.K. Basu v/s State of Bengal, 1997 1 SCC 416 .................................................
15,19 22. Delhi Domestic Working Women’s Forum v/s UOI, (1995) 1 SCC
14… ................. 13 23. Dharam Dutt v/s UOI, (2004) 1 SCC 712: AIR (2004) SC
1295…........................... 22
24. Dr. Khare v/s State of Delhi, 1950 1 SCR 519…..................................................... 20
25. Express newspaper v/s Union of India, (1959) SCR 12 (129) ...................................
24
26. Ebrahim Wazir v/s State of Bombay, AIR 1954 SC 229 ...........................................
23
27. E.P Royappa v/s State of Tamil Nadu, 1974 AIR 555 .............................................. 32

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28. Extra judicial execution victim families association (EEVFAM) and ors. v/s Union
Of
India and ors ............................................................................................................ 28
29. Fertilizers Corporation Kamgar Union, (1981) 1 SCC 568 .......................................
12
30. Free Legal Aid Cell v/s N.C.T. of Delhi, AIR 2001 Del 455… ...............................
14
31. Gaurav Jain v/s UOI, AIR 1997 SC 3021 ................................................................
15
32. Gurdeep Singh v/s State (Delhi Administration), 1999 Cri LJ 3956 .........................
17 33. Harichand v/s Mizo Dt. Counsel, AIR 1967 SC
829................................................. 25
34. Hardeep Singh Sohal and ors. v/s State of Punjab (through CBI), 204(3) ACR 2750
SC ........................................................................................................................... 17
35. Hari Shankar v/s State of M.P. , (1955) 1 SCR 380 ..................................................
25
36. Himmatlal v/s Police commissioner, AIR 1967 SC 87 .............................................
25
37. Hussainara Khatoon v/s Home Secretary, Bihar, AIR 1979 SC 1369 .......................
28
38. Jamat-E-Islami Hind v/s UOI, (1995) 1 SCC 428 ....................................................
22
39. Janta Dal v/s H.S. Choudary, AIR 1993 SC 892 ......................................................
12 40. Jogendra Kumar v/s State of U.P., AIR 1994 SC
1349… ....................................... 19
41. K. Satwant Singh v/s State of Punjab, (1960) 2 SCR 89 ..........................................
29
42. Kamshwar v/s State of Bihar, AIR 1962 SC 1166 ................................................... 25
43. Kamal Kishore v/s State (Delhi Administration), (1997) 2 crimes 169 (Del.)… .......
16
44. Kedarnath Singh v/s State of Bihar, AIR 1962 SC 955 ............................................
26
45. Krishna v/s State, AIR 1953 TC 174; ...................................................................... 22
46. Maniklal Chhotala v/s Makwana, AIR 1967 SC 1373 ........................................... 25

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47. Maneka Gandhi v/s UOI, AIR 1978 SC 597… ..........................................

20,23,28,31
48. MadhuLimaye v/s D.M., AIR 1971 SC 2486 .......................................................... 27
49. Minerwa Mills v/s UOI, AIR 1980 SC 178 ..............................................................23
50. M.C. Mehta v/s Kamal Nath, AIR 2002 SC 1515… .................................................
14
51. Mumbai Kamgar Sabha v/s Abdulbhai Faizubhai, (1976) 3 SCC 832 ................... 12
52. Maharaja Singh v/s State of UP, AIR 1976 SC 602 .................................................
12
53. Nair Service Society v/s State of Kerala, AIR 2007 SC
2981… ...............................14
54. Nawab Khan v/s State of Gujarat, AIR 1974 SC 1471 ..............................................
23
55. National Association v/s Alabama, (1957) 357 US 449 ...........................................
21
56. N.A.A.C.P v/s Button (19620 371 US 415 .............................................................. 22
57. Niharendu v/s Emperor(1942) 46 CWN (FR) 9 ..................................................... 26
58. Omkumar v/s UOI, (2001) 2 SCC 386 .................................................................... 25
59. Pathumma v/s State of Kerala, AIR 1978 SC 771 ................................................... 25
60. Pappanasamlabor union v/s Madura coast ltd AIR 1995 SC 2200 ...........................
25
61. People Union for Democratic Rights v/s UOI, AIR 1982 SC 1473 ...........................
30
62. Ram Singh v/s Central Bureau of Narcotics, 1998 Cri LJ 569 ..................................
16
63. Ramnandan v/s State, AIR 1959 All 101 ..................................................................
27
64. Ramjilal v/s State of U.P., AIR 1957 SC 620 .......................................................... 25
65. Ramashankar Kaushikv/s Election Commission of India, AIR 1974 SC 445… .......
21
66. Rotary International v/s Rotary Club, (1987) 481 US 537 .......................................
22
67. Romesh Thappar v/s State of Madras, (1950) SCR 594 .................................... 25,26

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68. Sakal papers v/s UOI, (1962) 3 SCR 842 (863)… ....................................................
24
69. Sarju v/s State, AIR 1956 All 589… ........................................................................
26
70. S.P. Gupta v/s UOI, 1981 (Supp) SCC 87 ............................................................... 12
71. S. Rangarajan v/s P. Jagjivanram, (1989) 2 SCC 574 ..............................................
24
72. Sahib Singh v/s State of Haryana, 1997 Cri LJ 3956… ............................................
17
73. Sehr v/s State of Karnataka, AIR 2010 SC1974 .......................................................
16
74. Senior Superintendent of Post Office v/s Izhar Hussain, (1989) 4 SCC 318 : AIR
1989
SC 2262 .............................................................................................................. 23.
75. Sodhi Shamser v/s State of PEPSU, AIR 1954 SC 276 ......................................... 26
76. State of Maharashtra v/s Siraz Ahmed Nisar Ahmed and ors., AIR 2017 SC
1859… .................................................................................................................... 18
77. State of Mahrashtra v/s Champala, AIR 1981 SC 1675 ............................................
28
78. State of Punjab v/s Jagdev Singh, 1984 SCR (2) 50…..............................................
19
79. State of Madras v/s Row, AIR (1952) SC 196 ..........................................................
22
80. State of Bihar v/sKamlakant Mishra(1969) 3 SCC 337 .......................................... 25
81. State of Orissa v/s Ganesh Chandra Jew, (2004) 8 SCC 40 ......................................
29
82. Supdt. v/s Ram Manohar, AIR 1960 SC 633 ............................................................
27
83. Superintendent Central Prison v/s Ram Manohar Lohiya, AIR 1960 SC 633 ............
25
84. Sweezy v/s Hampshire (1956) 354 US 23 ............................................................... 22
85. The Central Board of Film Certification v/s Yadavalaya films, (2007) 1 LW 374
(MAD) .................................................................................................................... 24

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86. The Peoples Union for Democratic Rights v/s UOI, AIR 1982 SC 1473 ..................
13 87. Thornhill v/s Alabama, (1940) 310 US
88................................................................ 21
88. Tribal Development and Training Institute Rajpur Distt. v/s UOI and Ors., W.P.No.
14 of 2015… .......................................................................................................... 13
89. United Transportation Union v/s Mihigan Bar, (1971) 401 US 576… .................. 22
90. Virendra v/s State of Punjab, AIR 1958 SC 896 ......................................................
25
100. Yates v/s U.S. (1957) 354 US 298 ........................................................................... 22

BOOKS

1. Bakshi, P.M. (3rd Ed.),Public Interest Litigation, New Delhi, Ashoka Law House
2. Myneni, S.R. (1st Ed.),Constitutional Law – I, Hyderabad, Asia Law House
3. Basu, D.D. (8th Ed.), Commentary on the Constitution of India, Nagpur, Lexis Nexis
4. Jain, M.P. (7th Ed.), Indian Constitutional Law, Gurgaon, LexisNexis

LEGAL DATABASES

1. www.Manupatrafast.com
2. www.SCCOnline.com
3. www.LexusNexus.com

LEXICONS

1. Garner, Bryan A. (10th Ed.) Black Law Dictionary ,Thomson Reuters

LEGISLATIONS

1. Constitution of Indiana.
2. The Armed Forces (Special Powers) Act, 1958.
3. Prevention and Detention Act, 2019.
4. Indiana Penal Code.

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5. Terrorist and Disruptive Activities (Prevention) Act, 1987

6. National Security Act, 1990
7. The Armed Forces (Jammu and Kashmir) Act, 1990
8. Prevention of Terrorism Act, 2002
9. Code of Criminal Procedure.
10. Indiana Evidence Act, 1872.

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STATEMENT OF JURISDICTION

It is most humbly submitted that the Petitioner has approached this Hon’ble SC under
Article 321 of the Constitution of Indiana for the violation of Fundamental Rights
guaranteed under the Constitution by filing a Public Interest Litigation.

The petitioner most humbly and respectfully submits before the jurisdiction of the present
court and accepts that it has the power and authority to preside over the present case.

1
Article 32 in The Constitution Of India 1950

32. Remedies for enforcement of rights conferred by this Part

(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights
conferred by this Part is guaranteed

(2) The Supreme Court shall have power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be appropriate, for the
enforcement of any of the rights conferred by this Part

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(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all or any of the
powers exercisable by the Supreme Court under clause ( 2 )

(4) The right guaranteed by this article shall not be suspended except as otherwise provided for by this
Constitution

STATEMENT OF FACTS

PRIOR TO ENFORCMENT OF THE ACT

The State of Kashir is a province, located on the northern flank of the Indiana, and having
contiguous land border with a country called Pompeoland. Taking advantage of volatile
situation, Pompeoland, in furtherance of its nefarious designs against the Republic of
Indiana, started instigating such activities in the Kashir province and providing covert
material support to them. Consequently, many political parties and youth organized mass
protest against the government of Indiana, which took violent turn on many occasions.
There was also unconfirmed news of penetration and infiltration of armed Non- State
Actors, supported by Pompeoland. As a part of protest many government institutions were
sabotaged and security forces were attacked, which resulted in the death of few civilians.

ENFORCEMENT OF“ANTI NATIONAL AND DISRUPTIVE ACTIVITIES

PREVENTION ACT, 2019”

Taking stock of the security and to suppress such destructive activities, The Parliament of
Indiana passed this law. Some of the provisions of this Act are:

• Confession given by the arrested person, before the SP will be admissible in court
• Any person may be detained and interrogated by security forces for the period of
90days on the basis of suspicion and without any warrant.
• UOI shall be authorized to deploy Security Forces of the union in any Province
without any request by or permission of provincial govt.
• Formation of parties, unions and organizations shall be prohibited without approval
of Collector of the District.
• Right to freedom of speech and expression was restricted against the government
and country.

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• Security forces are empowered to use reasonable force which may extend to causing
death of person who is found engaged in anti-national and terrorism activities.

AFTER THE ENFORCEMENT OF THE ACT

Though there was success in one part but this act received some criticisms from the
citizens, stating it was infringement of the fundamental rights. CPHR, a NGO, filed PIL
in the SC and challenged the constitutional validity of the Act.

ISSUES RAISED

1. WHETHER THE PIL FILED BY THE PETITIONER IS MAINTAINABLE

BEFORE THE HON’BLE SC. OF INDIANA?

2. WHETHER ANTI-NATIONAL AND DISRUPTIVE ACTIVITIES PREVENTION

ACT, 2019 IS VIOLATIVE OF FUNDAMENTAL RIGHTS OR NOT?

3. WHETHER THE POWER OF UNION TO DEPLOY SECURITY FORCES IN

ANY PROVINCE WITHOUT ANY REQUEST OR PERMISSION OF
PROVINCIAL GOVERNMENT IS CONSTITUTIONAL OR NOT?

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SUMMARY OF ARGUMENTS

1. WHETHER THE PIL FILED BY THE PETITIONER IS MAINTAINABLE

BEFORE THE HON’BLE SC. OF INDIANA?
The aim of PIL is to provide justice to weak, meek, and uneducated, the poorest
poor, depraved the urban and rural unorganized labor sector, women, children, handicapped,
and downtrodden. In the given case the petitioner being an NGO has filed a petition through
PIL challenging the constitutional validity of the “Anti National and Disruptive Activities

Prevention Act, 2019”.

2. WHETHER ANTI-NATIONAL AND DISRUPTIVE ACTIVITIES PREVENTION

ACT, 2019 IS VIOLATIVE OF FUNDAMENTAL RIGHTS OR NOT?
In the words of Lord Jennings:“If the men are ever to be able to break the bonds of
oppression or servitude, they must be free to meet and discuss their grievances and
to work out in unison a plan of action to set things right. . In the given case every
citizen of Indiana has a Fundamental Right enshrined under Art. 14, 19, 20, 21, 22
but all these are getting infringed after the formation of the new Act.

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3. WHETHER THE POWER OF UNION TO DEPLOY SECURITY FORCES IN

ANY PROVINCE WITHOUT ANY REQUEST OR PERMISSION OF
PROVINCIAL GOVERNMENT IS CONSTITUTIONAL OR NOT?

The respondent humbly submits that the power of union to deploy security forces in
any province without any request or permission of provincial government is
constitutional or not. While examining the legislative competence of Parliament to
make a law what is required to be seen is whether the subject matter falls in the
State List which Parliament cannot enter. If the law does not fall in the State List,
Parliament would have legislative competence to pass the law by virtue of the
residuary powers under Article 248 read with Entry 97 of the Union List and it
would not be necessary to go into the question whether it falls under any entry in the
Union List or the Concurrent List.

ARGUMENT ADVANCED

ISSUE1. WHETHER THE PIL FILED BY THE PETITIONER IS MAINTAINABLE

BEFORE THE HON’BLE SC. OF INDIANA?

The counsel on behalf of the petitioner humbly submits before the Hon’ble SC. of Indiana
that the PIL filed before the Hon’ble Court is maintainable as it is a legal action initiated in
the Court of Law for the enforcement of public or general interest of the people of Kashir,
since their legal rights or liberties are affected.1

Public Interest Litigation – (An Exception to locus standi).

PIL is an exception to the general rule that only the person whose fundamental right is
infringed or threatened to be infringed can file petition under article 32 2 of Constitution of
Indiana. The court now permits PIL or social interest litigation at the instance of “public
spirited citizen” for the enforcement of constitutional and legal rights of any person or
group of person who because of their poverty or socially or economically disadvantaged
position are unable to approach the court for relief. PIL is litigation at the instance of public

1 Janta Dal v/s H.S. Choudary[ AIR 1993 SC 892].

2 Article 32 of the Constitution of Indiana.

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spirited citizen espousing cause of others. Prof. Baxi prefers the term SAL instead of PIL.
The aim of PIL is to provide justice to weak, meek, and uneducated, the poorest poor,
depraved the urban and rural unorganized labour sector, women, children, handicapped, and
downtrodden. People of Indiana get relaxed under the provisions of the constitution (locus
standi).

In the case of A.B.S.K. Sangh (Rly) v/s UOI3, Krishna Iyer J. declared that, access justice is
through class action, PIL and representative proceedings in the present constitutional
jurisprudence. The expression ‘public interest litigation’ was first articulated by the Apex
Court in Fertilizers Corporation Kamgar Union 4 although the concept of PIL was discussed
earlier, without assigning the terminology in Mumbai Kamgar Sabha v/s Abdulbhai
Faizullabhai5 and in Maharaja Singh v/s State of U.P.6 However the concept was crystallized
in S.P. Gupta v/s UOI7 where the Hon’ble Court held that any member of

3 A.B.S.K. Sangh (Rly) v/s UOI ,AIR 1981 SC 298

4 Fertilizers Corporation Kamgar Union,(1981) 1 SCC 568
5 Mumbai KamgarSabha v/s AbdulbhaiFaizullabhai(1976) 3 SCC 832
6 Maharaja Singh v/s State of U.P. AIR 1976 SC 602
7 S.P. Gupta v/s UOI 1981(Supp) SCC 87

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public having sufficient interest, can approach the court for enforcing constitutional or legal
rights of other persons and can redress for a common grievance.

Similarly in the given case also, due to the enforcement of Anti National and Disruptive
Activities Prevention Act, 2019 there is violation of the Fundamental Rights of large no. of
people of Kashir and as held in the case of The Peoples Union for Democratic Rights v/s
UOI8, that PIL is brought before the court to promote and vindicate public interest, which
demands the violation of Constitutional or Legal Rights of large no. of people who are
poor, ignorant or in socially or economically disadvantaged position should not go
unnoticed and unredressed. In the same way in the given case also the people who are
effected due to enforcement of the above mentioned act also contain those who are poor
and ignorant or in a socially or economically disadvantaged position in the state of Kashir.

Is the Petitioner competent to file the PIL?

In the given case the petitioner being an NGO has filed a petition through PIL challenging
the constitutional validity of the Anti National and Disruptive Activities Prevention Act,
2019.

In the case of Balakrishnan Nair v/s Chief Secretary to the Government of Kerala 9,H.C. of
Kerala held that a PIL is a petition that an individual or a non-Government organization or
citizen groups can file in the court seeking justice on an issue having a larger public
interest. Similarly in the given case also due to the enforcement of the above mentioned act
the fundamental rights of the public of Kashir are being violated and also the people of
Kashir are being affected hence, the petitioner i.e. an NGO has come forward by filing a
PIL on behalf of the deprived. Further in the case Tribal Development and Training
Institute Rajpur Dist. v/s UOI and ors. 10,it was held petitioner being a NGO filed a PIL and
the writ petition i.e. filed is maintainable as a PIL because the NGO is intending to bring
justice to a large no. of Schedule Tribe who are uneducated and residing in dense forest. In
the same way in the given case also the petitioners are intending to bring justice to those are
suffering due to enforcement of the said act. Also in the case of Delhi Domestic Working

8 People Union for Democratic Rights v/s UOI, AIR 1982 SC 1473
9 Ballkrishnan Nair v/s Chief Secretary to the Government of Kerala,W.P. (C) No. 2329 of 2018
10 Tribal Development and Training Institute Rajpur Dist. v/s UOI and ors.,W.P. No. 14 of 2015
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11
Women’s Forum v/s UOI S.C. asked the government to set up ‘Criminal Injuries
Compensation Board’ in response to the PIL filed by the NGO under Art. 32 to expose the
pathetic life of four domestic servants who were subjected to indecent sexual assault by
seven army personal. Further in the case of Free Legal Aid Cell v/s N.C.T. of Delhi 12
andM.C. Mehta v/s Kamal Nath13 Court held that PIL is a device through which it has been
able to consider the issues pertaining to the poor, unprivileged and the deprived who would
not otherwise have a chance ofredressal of their grievances and now such people have
access to the highest court through a PIL filed by someone on their behalf. Similarly in the
case of Bar council of Maharashtra v/s S.V. Dabholkar 14, Mr. Krishna Iyer J. held that a
public spirited should have a right to file a PIL for making justice available to the weaker
sections of the community who are downtrodden, ignorant, illiterate and are deprived of
their right to social, economic and political justice, even if the petitioner does not have any
direct or indirect interest in the case. In the instant case, the court allowed the petitioner to
file a writ petition on behalf of the State Bar Council being aggrieved by the decision of the
Bar Council of India on the ground that it was in the interest of the legal profession and
necessary so far the professional ethics and moral conduct of lawyers was concerned. Also
in the case of Nair Service Society v/s State of Kerala 15 S.C. held that when a question of
grave importance has been brought to the notice of the court, the court will not shut its eyes
and refuse to determine the question on the technical plea of lack of locus standi. Further in
the case of Dattaraj Nathuji Thaware v/s State of Maharashtra and Ors. 16,SC observed that
writ petitioner who comes to court for relief in public interest must come not only with
clean hands like any other petitioner but also with a clear heart, mind and objective. In the
same way in the given case also the petitioner has filed a PIL challenging the constitutional
validity of the above mentioned act which violates the fundamental right of the people of
Kashir and also gives unlimited power of the central forces which would lead to
exploitation of the people of Kashir. The NGO working for the welfare of such people of
Kashir is competent to file the PIL as its basic motive is to promote and protect the public
interest of the people of Kashir.

11 Delhi Domestic Working Women’s Forum v/s UOI, (1995) 1 SCC 14

12 Free Legal Aid Cell v/s NCT, Delhi,AIR 2001 Del 455
13 M.C. Mehta v/s Kamalnath, AIR 2002 SC 1515
14 Bar Council of Maharashtra v/s S.V. Dabolkar, (1976) 1 SCR 306
15 Nair Service Society v/s State of Kerala, AIR 2007 SC 2981
16 DattarajNathurajThaware v/s State of Maharashtra and ors.,AIR 2005 SC 540

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Remedy against injustice whenever fundamental and constitutional right are violated.

In the year 2019 Parliament of Indiana passed a law named Anti National and Disruptive
Activities Prevention Act, 2019.When we talk about the provisions of the above mentioned
Act, they are directly or indirectly violating the provisions of constitution either it is in

reference to Part III of Constitution of Indiana or other provisions of Constitution. Most of

the provisions of the Act whether it is about giving admissibility to the confession in Court
of Law given by the arrested person, during the course of investigation, before S.P. or
giving the Union of Indiana the power to deploy Central Security Forces in any province
without any request or permission of the provisional government or restricting the right to
form parties, union and other organization or taking away the right to freedom of speech
and expression or whether it is about giving arbitrary and unreasonable power to security
forces which extends to causing death of a person are violating the basic rights of a human.

In the case of D.K. Basu v/s state of Bengal 17, the court held that the PILs are witnessing
the award of compensation by court to victims of human right violations. In Anandilal
Chourasia v/s UOI18, the H.C. allowed the PIL petition and held that it would not be valid to
suspend all aid under Central and State Schemes to that village and such an action by the
state Govt. was arbitrary and ultra vires the Art. 1419 of the Constitution and therefore liable
to be struck down. Further in Gaurav Jain v/s UOI 20,the Apex Court allowed the PIL
petition and issued direction to the social welfare Department to establish Protective homes
so that the children may live with dignity. Also when we talk in reference of situation of
other countries that have enforced a similar Act, there also this piece of legislation is
serving threat to basic human rights in places where such an act is enforced. India a country
like Indiana has enforced a similar act in its certain part like Jammu and Kashmir the
statistics from 1985 to 1990 show crime rates against women hovering at around 19,000
17 D.K. Basu v/s State of Bengal, 1997 1 SCC
416
18 AnandilalChourasia v/s UOI, AIR 2008N MP 257 (FB)
19 Art 14. Equality before law – the state shall not deny to any person equality before the law or the equal
protection of laws within the territory of India.
20 Gaurav Jain v/s UOI, AIR 1997 SC 3021
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incidents per year. In 1989, when the insurgency started, a sudden spike to 21,442 is
noticed, while the imposition of AFSPA in 1990 sees a drop to 15,047. Sporadic data for the
1990s shows that 1992 and 1994 saw a decline to 976 and 901 reported cases respectively,
rising to 1,210 in 1996. The next data set starts in 2000, where one sees a gradual and
consistent rise from 1,634 cases in 2000 to 3,360 in 2015, or a 106 per cent increase. The
initial rapid drop in cases could be attributed to the lack of reporting given the adversarial
nature of relations between the organs of the state, especially law enforcement. This shows
one of the consequences of the enforcement of the Act.

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Hence the counsel on behalf of the petitioner humbly submits before the Hon’ble S.C. that
if it may deem fit to the Hon’ble Court then it may allow the PIL in form of petition.

ISSUE2.WHETHER ANTI-NATIONAL AND DISRUPTIVE ACTIVITIES PREVENTION

ACT, 2019 IS VIOLATIVE OF FUNDAMENTAL RIGHTS OR NOT?

The counsel on behalf of the petitioner humbly submits that the Act is violative of
fundamental rights of the people of Kashir. The Parliament of Indiana has passed a law
named “Anti -National and Disruptive Activities Prevention Act, 2019”, which according to
them was a requirement in order to suppress the destructive activities. But this Act is in
contravention of many fundamental rights enshrined in Part III of Constitution of Indiana.

Giving Admissibility to the Confession by arrested person before the S.P.

Petitioner humbly submits before the Hon’ble S.C. that according to the facts of the case, a
provision of the Act makes the confession given by the arrested person during the course of
investigation, before the S.P. admissible in the court of law. Article 14 21of the Constitution
of Indiana guarantees equality before law and equal treatment in eyes of law. The provision
of the Act mentioned above goes in contravention of this Article because admissibility is
provided to the confession given by the person who has been arrested in the State of Kashir,
during the course of investigation before S.P. whereas, no such admissibility is given to the
confession given by a person accused according to procedural law.

In the case of Ram Singh v/s Central Bureau of Narcotics 22, SC held that Sec 25 of Indian
Evidence Act, 1872 makes confessional statement of the accused before police officers 23
inadmissible as evidence which cannot be brought on record by prosecution to obtain
conviction. Further in the case of Sehr v/s State of Karnataka 24, Hon’ble S.C held that
statements made in police custody are considered to be unreliable unless they have been
subjected to cross examination or judicial scrutiny. Also, in the case of Kamal Kishore v/s
State (Delhi Administration)25, Delhi HC held that confession made while in custody is not
21 Article 14. Equality before law- the state shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India Prohibition of discrimination on grounds of religion, race,
caste, sex or place of birth.
22 Ram Singh v/s Central Bureau of Narcotics, AIR 2011 SC 2490
23 As to statement made to police officer investigating a case, see CrPC, 1973 (2 of 1974), Sec 162
24 Sehr v/s State of Karnataka, AIR 2010 SC
1974
25 Kamal Kishore v/s State(Delhi Administration), (1997) 2 crimes 169 ( Del.)

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to be proved against the accused as the provisions of Sections 25 and 26 do not permit it
unless it is made before a magistrate. Chief justice Warren of the SC of America declared
that the government may not use statement obtained from” custodial interrogation” of
defendant unless it can be shown that his right against self incrimination had been carefully
secured by effective “procedural safeguard” that does not violate the due process of law.
This preposition is known as Miranda Rule 2627. Before the interrogation the police must
warn the accused that he has right to remain silent secondly that accused must be informed
that whatever statement he makes would be used against him thirdly the accused is entitled
to engage counselduring such interrogation. These three conditions must be strictly
compiled or the defendant must have waved these rights, knowingly and intelligently:
otherwise the confession is inadmissible. 28In the case of Bharat bhai v/s State of Gujarat 28,
SC held the confessional statement given before the police officer is not admissible and it
cannot be made basis for upholding the conviction. Rule 15 (3) (b) of TADA rules 1987 is
not an empty formality. These aspects are noted by this Court in Sahib Singh v/s State of
Haryana29and Gurdeep Singh v/s State (Delhi Administration)30.There is one common
feature, both in Section 15 of TADA Act and Section 24 of the Evidence Act that the
confession has to be voluntary. Section 24 of the Evidence Act interdicts a confession, if it
appears to the Court to be the result of any inducement, threat or promise in certain
conditions.The principle therein is the confession has to be voluntary. But in the given case
the provision making the confession given by the accused in front of S.P. admissible in the
Court of Law nowhere provides that the confession should be voluntary. Section 15 of
TADA Act also requires the confession to be voluntary.

In the case of Ashraf Khan Alias Babu Munnekha Pathan and anr. v/s State of Gujarat 31, the
court held that, the conviction of an accused under sec 7 and 25 (1-a) of Arms Act and
section 4, 5, and 6 of Explosive Substances Act, cannot be allowed to stand and the
designated court held that the conviction is vitiated on account of non-compliance of the
mandatory requirement of prior approval under sec 20 (a) (1) of TADA Act. The confession

26 Miranda v/s Arizona, 384 U.S. 436 (1966)

27 18 U.S.C. § 3501 (a) &
(b)
28 Bharatbhai v/s State of Gujarat, AIR 2002 SC 3620
29 Sahib Singh v/s State of Haryana, 1997Cri LJ 3956
30 Gurdeep Singh v/s State (Delhi Administration), 1999Cri LJ 4573
31 Ashraf Khan Alias BabuMunnekhaPathan and anr. v/s State of Gujarat, (2012) 11 SCC 606

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recorded cannot be looked into to establish the guilt. Further in the case of, Hardeep Singh
Sohal and ors. v/s State of Punjab (through CBI) 32, the court held that, the entire evidence of
confession recorded in sec 15 and the extra-judicial confession is inadmissible. In the case
of State of Maharashtra v/s Siraz Ahmed Nisar Ahmed and ors. 33, the court held that the
Ratio Decidendi of rejecting a confessional statement is that any confession made in
defiance of the safeguards provided therein, would not be relied upon the court. Further a
two-Judge Bench of this Court in Kalpnath Rai v/s State (Through CBI) 35 Thomas J.
observed: confession made admissible under Section 15 of TADA can be used as against a
co-accused only in the same manner and subject to the same conditions as stipulated in Sec.
30 of the Evidence Act. But in given case no procedure has been laid down in order to be
followed when admissibility is required to be given to the confession of the accused before
the SP.

Detention and Interrogation on the Basis of Suspicion and Without Requirement of Any
Warrant.

Petitioner humbly submits that Anti-National and Disruptive Prevention Act, 2019
empowered security forces to detain and interrogate a person for a maximum period of 90
days in connection with anti national activities offence on the basis of suspicion and
without any requirement of warrant.

In the case of A.R. Antulay v/s R.S Naik 36it was held that under the code of criminal
procedure, detention in police custody beyond the constitutional limit of 24 hrs must be
authorized by the magistrate when the accused is initially produced, the magistrate must
release the accused on bail unless it appears that” investigation cannot be completed” within
24 hours and the accusation is well founded - in which case the accused may be remanded
to police custody from upto 15 days. Preventive detention is a most contentious part of the
scheme fundamental rights in the Constitution of Indiana. Art 22(3) provides that if the
person who has been arrested and detained under Preventive Detention Act then the
protection against the arrest and detention provident under Article 22(1) and 22(2) shall not
be available to that person. If the Anti National and Disruptive Prevention Act, 2019 was

32 Hardeep Singh Sohal v/s State of Punjab (through CBI), 204(3) ACR 2750 SC
33 State of Maharashtra v/s Siraz Ahmed Nisar Ahmed and ors., AIR 2017 SC 1859
35
Kalpnath Rai v/s State (Through CBI) (1997) 8 SCC 732.
A.R. Antulay v/s R.S Naik1988 AIR 1531

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defended on the grounds that it is a preventive detention law, it would still violate Art. 22 of
Constitution of Indiana, as under Art. 22(5) the person must be told the grounds of their
arrest but the provision of the Act which is mentioned here only states that a person can be
arrested by Armed Forces without a warrant and on the mere suspicion that they are going
to commit an offence. Here, the Armed Forces are not obliged to communicate the grounds
for the arrest. Since, the arrest is without the warrant hence, it violates the preventive
detention clauses of Article 22. In the case of Devendra v/s State of Rajasthan and Ors. 34, it
was held that under preventive detention laws, the personal liberty of the citizens is
curtailed down, when the liberty is curtailed down under preventive detention, it is
imperative that a faithful compliance should be made of the provisions of the law of
preventive detention. The citizen, who has been detained under law of preventive detention,
has a right to contend that the provision of the law has been breached and as such his
detention is illegal.

In the case of State of Punjab v/s Jagdev Singh 35, their Lordship observed that preventive
detention is a necessary evil, but essentially an evil. Therefore, deprivation of personal
liberty, if at all have to be on a strict terms of the constitution. Nothing less preventive
detention is considered so treacherous and such an anathema to civilized thought and
democratic polity that it safeguards against undue exercise of power to detain without trial
have been built into the constitution itself and incorporative as fundamental rights . The
provision of anti-national and disruptive prevention act 2019 which empowers the security
forces to detain and interrogate for a maximum period of ninety days on the basis of
suspicion and without any requirement of warrant is similar to Sec.4 (c) 36 of AFSPA. The
picture is so clear as to how valid and how constitutional the law of the AFSPA is, the
guidelines provided by Hon’ble S.C., in the case of Jogendra Kumar v/s State of U.P. 37 and
D.K. Basu v/s State of W. B.38 it was held that an arrest should not be made on mere

34 Devendra v/s State of Rajasthan and ors, W.P. NO.

3627/2018
35 State of Punjab v/s Jagdev Singh, 1984 Cri LJ 177
36 Sec 4(c) - Special Powers of the armed forces.—Any commissioned officer, warrant officer, non-
commissioned officer or any other person of equivalent rank in the armed forces may, in a disturbed area,— (c)
arrest, without warrant, any person who has committed a cognizable offence or against whom a reasonable
suspicion exists that he has committed or is about to commit a cognizable offence and may use such force as
may be necessary to effect the arrest;
37 Jogendra Kumar v/s State of U.P., AIR 1994 SC 1349
38 D.K. Basu v/s State of W.B.,AIR 1997 SC 610

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suspicion of a person’s complicity in the crime. The police officer must be satisfied about
the necessity and justification of such arrest on the basis of investigation.

Universal Declaration of Human Rights provide in Art.9 that “No one shall be subject to
arbitrary arrest, detention or exile” also Art.9 (1) of international covenant on civil and
political rights states: “everyone has a right to liberty and security of persons. No one shall
be subject to arbitrary arrest or detention. No one shall be deprived of his liberty except on
the grounds and in accordance with such procedure as are established by law. In the matter
of
A.K. Gopalan v/s State of Madras39,the court ruled that even though great difference
normally would be paid to the legislator, establishment of procedure in matters of preventive
detention, the state shall not be permitted to arrest and imprison individuals in an arbitrary
fashion. In this case Mr. Gopalan was arrested under a preventive detention statute. He
argued that the manner in which he was arrested and detained violated the principles of
natural justice inherent within not just Art.21 but also Art.19. Art.19 articulates a
fundamental right protecting freedom of speech, association, movement and the like.
Although the court ruled that arbitrary behaviour by the state contravening a fundamental
right violated the constitution, the court refused to bring a natural justice analysis into its
consideration of this article.

Some years later in Maneka Gandhi v/s UOI 40,the S.C. reading the Art.19 and 21 together
ruled that any person detained or arrested has the right to offer a defence as well as a right
to be heard; that an impartial must adjudicate the cause against the defendant in a fair,
deliberate manner; and that the tenets of natural justice- not the tenets of parliament- serve
as the standard for which procedures used against the accused will be judged. Further in the
case of Dr. Khare v/s State of Delhi 44, it was observed that in considering reasonableness of
a law imposing restriction on fundamental rights both substantive and procedural aspect of
law should be examined on point of view of reasonableness and test of reasonableness
where ever prescribed should be applied to each individual statute impugned and no
abstract standard or general pattern of reasonableness can be laid down as applicable to all
cases. But in the given case no reasonable pattern has been defined following which

39 A.K. Gopalan v/s State of Madras, AIR 1950 SC 27

40 Maneka Gandhi v/s UOI, AIR 1978 SC 597
44
Dr. Khare v/s State of Delhi, 1950 1 SCR 519.

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security forces can detain a person instead it says that any person can be detained or
interrogated for a period of maximum 90 days merely on the basis of suspicion.

Prohibition of formation of parties, unions and expression without approval and

satisfaction of Collector of the concern District.

The petitioner humbly submits before the court that parliament of Indiana has passed a law
named Anti National and Preventive Detention Act, 2019 which prohibit the formation of
parties, union and other organization without the approval and up to satisfaction of the
collector of the concerned district. Whereas, Art.19 (1)(c) 41 of Constitution of Indian
guarantees that every citizen has the right to from association or unions or cooperative
society. The right of association like all other rights of the citizen is derived from the

principle that man may do what he like and therefore associate with whom he likes
provided that no law is broken. Two vital elements of an association are members and
common purpose for which they associate. Association implies joining with another or
others as companion, partners, etc. 42 Freedom of association is a pillar of Democracy. That
is the reason why the international community gave recognition to it in Art. 22 43of the
International Covenant on Civil and Political Rights, 1966 and in Art.11 of the European
Convention on civil and political rights, 1950. Also it is merely for the political purpose that
freedom of association is essentials for democracy; it is essential for the maintenance of the
other rights guaranteed to the individual; by the Constitution or the law. Prima facie, the
right to form association is the greatest bulwark against power in any form. Where a single
voice cannot make itself heard that of the multitude certainly can. In the words of Lord
Jennings:

41 Article 19(1) All citizens shall have the right : (c ) to form associations or unions;
42 Ramashankar Kaushik v/s Election Commission of India, AIR 1974 SC 445

43 Article 22 (1). Everyone shall have the right to freedom of association with others, including the right to
form and join trade unions for the protection of his interests. 2. No restrictions may be placed on the exercise
of this right other than those which are prescribed by law and which are necessary in a democratic society in
the interests of national security or public safety, public order (order public), the protection of public health or
morals or the protection of the rights and freedoms of others. This article shall not prevent the imposition of
lawful restrictions on members of the armed forces and of the police in their exercise of this right. 3. Nothing
in this article shall authorize States Parties to the International Labour Organisation Convention of 1948
concerning Freedom of Association and Protection of the Right to Organize to take legislative measures
which would prejudice, or to apply the law in such a manner as to prejudice, the guarantees provided for in
that Convention.

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“If the men are ever to be able to break the bonds of oppression or servitude, they must be
free to meet and discuss their grievances and to work out in unison a plan of action to set
things right.”44

The association and co-operation of human beings in voluntary groups is one of the most
important facts of social development. These associations exist for the most part with the
object of furthering a purpose common to the members and for protecting the interests of
the members in fulfilment of that purpose. 45 Freedom of Association includes the right to
form an association for any lawful purpose46 i.e. for the pursuit of any common interest of a
group of people, having a community of interest 47. It is now beyond debate in Constitution
of
America that freedom to engage in association for the advancement of beliefs and ideas is
an inseparable aspect of the ‘liberty assured by the Due Process clause of the
14thAmendment.’48 In some cases, the freedom of association has also been deduced from
the First Amendment: “Our form of Government is built on the premise that every citizen
has the right to engage in political expression and association. This right was enshrined in
the First Amendment of the Bill of Rights.”49 It has been held that the freedom of
association includes not only the freedom to engage in an association for the advancement
of beliefs and ideas50, but also the formation and organization of parties, as a mode of
expression of all political ideas, or for the purpose of assisting persons who seek legal
redress for infringement of their constitutional or other rights51, even though members of the
legal profession may be affected thereby52. From the right to form associations for political,
religious or economic purposes, the further extension is the acknowledgement of the right to
form association for any lawful purpose that deserves constitutional protection 53.

44 Thornhill v/s Alabama, (1940) 310 US 88

45 All India Bank Employees Association v/s N. I. Tribunal, AIR 1962 SC 171
46 Supra 36
47 D.A.V College v/s State of Punjab AIR 1971 SC 1737
48 National Association v/s Alabama, (1957) 357 US 449
49 Sweezyv/s Hampshire (1956) 354 US 234
50 Boos v/s Barry (1988) 485 US 312
51 N.A.A.C.P v/s Button (19620 371 US 415
52 United Transportation Union v/sMihigan Bar, (1971) 401 US 576
53 Rotary International v/s Rotary Club, (1987) 481 US 537

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In the case ofState of Madras v/s V. G. Row 54, the Court observed that fundamental Rights
to form association or Union Guaranteed by Article 19 (1) has such a wide and varied scope
for its exercise and curtailment is fraught, with such potential reactions in the religious ,
political and economic, feels that the vesting of the authority in the executive government to
impose restrictions such right without allowing the grounds of such imposition without,
both in their factual and legal aspects to be duly tested in a judicial enquiry, is a strong
element which should be taken into account in judging the reasonableness of restriction
imposed on the fundamental rights under Article 19(1)(c) 55. In the case Krishna v/s State56,
Court held that a law which does not provide for a judicial review or precludes such review
against an administrative order declaring an association unlawful must therefore, be held to
be an unreasonable restriction upon freedom of association. Similarly, in the given case also
though the parliament of Indiana has enacted a law which does not provide for a judicial
review or precludes such review against an administrative order declaring an association
unlawful. In the case of Jamat-E-Islami Hind v/s UOI 57, Court held where no evidence is
adduced before the tribunal and the tribunal also did not device any procedure to satisfy
itself about the credibility of sensitive information and the association filed affidavit
denying the allegation of being “an unlawful association” and also examined witnesses in
support, of its case, Tribunal cannot confirm the notification and declare it as ‘unlawful’.
Whereas in the case of Air India v/s Nargesh Meerza 58, the Managing Director has
unfettered and unguided discretion to the extend the age of airhostesses at this option. He
could exercise his discretion in favour of one air hostess and not in favour of another. There
were no guidelines nor there was any procedural safeguard, nor there was any provision for
appeal, the power was held to be arbitrary. Also, in the given case Senior Superintendent of
Post Office v/s Izhar Hussain,59 court held that unguided discretion in a rule, which is
constitutionally invalid, cannot be validated with the support of executive instructions. In
the given the case if the people of Kashir have to form of a political party then they have to
take the approval of the Collector of the concerned District whereas when we talk in

54 State of Madras v/s V. G. Row(1952) SCR 597 (607)

55 Yates v/s U.S. (1957) 354 US 298 (320)
56 Krishna v/s State, AIR 1953 TC 174; Chhadayamurtyv/s State AIR 1952 TC 217 (FB).
57 Jamat-E-Islami Hind v/s UOI,(1995) 1 SCC 428. See also DharamDuttv/s UOI. (2004) 1 SCC 712: AIR
2004 SC 1295.
58 Air India v/s NergeshMeerza, AIR 1981 SC 1829.
59 Senior Superintendent of Post Office v/sIzharHussain, AIR 1989 SC
2262.

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reference of people other than that of Kashir then they have to just register by making an
application before the Election Commission according to the procedure laid down in
Representation of the People Act, 1951 which leads to violation of Art. 14.

In the case of E.P Royappa v/s State of Tamil Nadu 60,Court held that arbitrariness
isantithetic of Art. 14. Also in the case of A.P.H.L. v/s Sangma 61, it was held that a
representative democracy in the modern world, political parties have become indispensable,
because it is through the parties that the voters an unwieldy mass under adult suffrage) may
organize themselves and express their opinions effectively. There is, however, no doubt,
that a political party is a voluntary association for a lawful purpose, since it is essential for
the operation of a democracy and would therefore come under the protection of Art 19(1)
(c). Further in the case Minerwa mills v/s UOI 62,it was held that Art.19, 21, 22 are mutually
exclusive. Subsequent in Maneka Gandhi’s case 63so many aspects of fair procedure or
reasonable and just procedure in the context of Article 21 have come up before the Court.It
is now established that, subject to restrictions to be mentioned hereafter, a restriction
imposed upon a fundamental rights guaranteed by Art. 19 are not procedurally reasonable if
it seeks or empowers an authority to restrict a fundamental right without complying with
the rules of natural justice.64In some cases, the S.C. has demanded the judicial enquiry for
deprivationof right of association.65

Restriction on right of freedom of speech and expression as making speeches and other
remarks against Govt. and country at public platform was restrained.

The petitioner humbly submits that according to the facts of the case a provision of Anti-
National and Disruptive Activities and Prevention Act, 2019. Right to freedom of speech
and expression and restricted as making speeches and other remarks against Govt. and
country at platform was restrained. Art.19 of constitution of Indiana states that every citizen
shall have the right to freedom of speech and expression, which means the right to express
one’s own conviction and opinion freely by mouth, writing, printing, picture or any other
mode. Freedom of speech is one the most cherished right under the Constitution of Indiana

60 E.P Royappa v/s State of Tamil Nadu

61 A.P.H.L. v/s Sangma, AIR 1977 SC 2155.
62 Minerwa Mills v/s UOI, AIR 1980 SC 1789
63 ManekaGnadhi v/s UOI AIR 1978 SC 597
64 Nawab Khan v/s State of Gujarat, AIR 1974 SC 1471
65 State of Madras v/s Row, AIR 1952 SC 196; Ebrahim Wazir v/s State of Bombay, AIR 1954 SC 229

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and any restrictions as this right is prime facie unconstitutional unless the same could be
justified in terms of limitation under Art.19(2)66. Art.19(2)67 of Constitution of Indiana that
state can make laws imposing reasonable restriction on the exercise of rights conferred by
said sub- clause in the interest of security, integrity, etc.

In the case of S. Rangarajan v/s P. Jagjivanram 68 S.C. held that if the film is
unobjectionable and cannot constitutionally be restricted under Art.19(2), the freedom of
expression cannot be suppressed on account of threat of demonstration and possession. That
would amount to negation of rule of law; it is the duty of the State to protect freedom of
expression since it is a liberty guaranteed against State. State cannot prevent open
69
discussion and open expression, however, hateful to its policies. The only grounds under
which freedom of expression guaranteed by clause(1) (a) of Art.19 can be abridged are
those mentioned in clause(2) thereof. If a law directly affecting its challenge, it is no answer
that the restrictions imposed by it are justifiable under clause (3) to (6) 70. Whatever be the
form in which restriction is imposed it will have to be tested under clause(2) which are that
firstly restriction must be imposed by the law, secondly the law must be valid, thirdly the
restriction imposed by the law must be reasonable, fourthly, it must be reasonable both from
procedural and substantive standpoints. Fifthly, it must relate to any other ground of
restriction specified in clause (2) of Art.19 and such relationship must be proximate and not
remote. The restriction must not be misappropriated to the situation, that is the legislator
and the administrative authority must, maintain a proper balance between adverse effects
which the legislations or the administrative orders may have on the rights, liberties or
interest of persons keeping in mind the purpose which they intended to serve, whether the
restriction infringes the right excessively or not is for the court to decide 71. In order to be
“reasonable restrictions must have reasonable relation to the object which the legislation

66 G.Jairaj v/s State of Karnataka, 1998 AIHC 3960

(Kant)
67 Art19. Protection of certain rights regarding freedom of speech etc
(2) Nothing in sub clause (a) of clause ( 1 ) shall affect the operation of any existing law, or prevent the State
from making any law, in so far as such law imposes reasonable restrictions on the exercise of the right
conferred by the said sub clause in the interests of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order, decency or morality or in relation to contempt of
court, defamation or incitement to an offence
68 S. Rangarajan v/s P. Jagjivanram, (1989) 2 SCC 574
69 The Central Board of Film Certification v/s Yadavalaya films, (2007) 1 LW 374 (MAD)
70 Express newspaper v/s UOI, (1959) SCR 12 (129); Sakal papers v/s UOI, (1962) 3 SCR 842 (863)
71 Omkumarv/s UOI, (2001) 2 SCC 386; Pappanasamlabor union v/s Madura coast ltd AIR 1995 SC 2200;
Chintanmanraov/s State of M.P. AIR 1951 SC 118; Pathummav/s State of Kerela, AIR 1978 SC 771

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seeks to achieve and must not go in excess of the object”. The restrictions made in the
interest of public order must also have reasonable relation to the object to be achieved viz.
public order. If the restriction has no proximate relationship to the achievement of object
viz. public order, it cannot be said that a restriction is a reasonable restriction 72. The express
on ‘reasonable restriction’, further, requires that restriction, whether prior or subsequent
must be both substantially and procedurally reasonable. The following condition must,
therefore, be complied with in order that a law imposing a prior restraint may be held as
‘reasonable’:

a) It must not be vague or uncertain73 or in excess of the requirement.74

b) It must be temporary 75(as distinguished from an indefinite duration) 76& confined to
situation of emergency or similar situations.77
c) It must offer a standard or policy for the guidance of the administrative authority in
the matter of exercising his subjective power.78
d) Judicial Review at some stage or some form has also been insisted upon as regards
the freedom of expression, or association79.

In the case of RomeshThapparv/s State of Madras84 after an elaborate analyses of the

concept of public order, the majority of S.C. observed that public order is an expression of
wide connotation and signifies that state of tranquillity which prevails among the members
of 80political society as a result of internal regulation enforced by the Govt. which they have
established. Prior to amendment of 1951, as a result of the word ‘sedition’ in pursuance of
the federal court decision81. Noted above, criticism of Govt. could be penalized as an
offence only when it was attended with violence or was calculated to bring about ‘anarchy’

72 Supt. Central prison v/s Ram ManoharLohiya, AIR 1960 SC 633

73 Ramjilalv/s State of U.P., AIR 1957 SC 620
74 Kamshwarv/s State of Bihar, AIR 1962 SC 1166
75 Babulalparatev/s State of Mahrashtra, AIR 1961 SC
884
76 Virendrav/s State of Punjab, AIR 1958 SC 896
77 Hari Shankar v/s State of M.P. , (1955) 1 SCR 380; State of Bihar v/sKamlakant Mishra(1969) 3 SCC 337
78 Harichandv/sMizo Dt. Counsel, AIR 1967 SC 829; ManiklalChhotalav/sMakwana, AIR 1967 SC 1373;
Himmatlalv/s Police commissioner, AIR 1967 SC 87
79 State of Madras v/s Row, AIR (1952) SC 196.
80 RomeshThappar v/s State of Madras, AIR (1950) SC 124
81 Niharenduv/s Emperor(1942) 46 CWN (FR) 9

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so as to either undermine the ‘security of State’ or ‘tend to overthrow’ it.8283 But mere
excitement of disaffection or bad feels against Govt. or even an successful attempt to excite
bad (which also comes within the purview of Sec124A87) may not necessarily undermine the
security of State as explained by S.C. in RomeshThapparv/s State of Madras88. Sastri J.
unequivocally observed –

“Deletion of the word sedition from draft of Art.13(2), therefore, shows that criticism of
Govt. exciting disaffection or bad feelings towards it is not to be regarded as a justifying
round for restricting the freedom of expression and of press, unless it is such as to
undermine the security or tend to overthrow the State.”

In the given case restriction has been laid down on the freedom of speech and expression
through the above mentioned Act without giving any consideration to what the content of
the speech are. Govt. by constitutional means has no natural tendency to cause a public
disorder, even though the speaker does not actually incite the use of violence e.g., where
fighting’s slogans are uttered before an already excited mob. S.C. has accordingly
interpreted Sec.142A to mean that an utterance would be punishable under this sec. only
when it is intended or has a reasonable tendency to create disorder or disturbance of public
peace by resort to violence 84. Now that the S.C. has held 85 that causing mere disaffection
against the Govt. established by law cannot be penalized in the interest of security of the
State or of public disorder. On this basis, it has been held that the citizen has a legitimate
and substantial conduct of public figures and that the freedom of press extends to engaging
in uninhibited debate about the involvement of public figures in public issues events. 86 In
the interest of public order, the State cannot impose restrictions upon utterance of the
following kinds merely because they cause some “public inconvenience, annoyance or
unrest”, e.g.:87

a) Criticism of a party Govt.88

82 RomeshThapparv/s State of Mdras, (1950) SCR 594

83
88
Supra46
84 Kedarnath Singh v/s State of Bihar, AIR 1962 SC 955
85 Supra 49
86 R.Rajgopalv/s State of T.N., AIR 1995 SC 264
87 SodhiShamserv/s State of PEPSU, AIR 1954 SC 276
88 Ahmed v/s State, AIR 1951 All 459; Sarjuv/s State, AIR 1956 All 589

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b) Criticism89 of, or defamatory slogan90 against a minister.

c) A mere instigation without incitement to violence.

In striking down sec. 3 of the U.P. Special Power Act, 1932, which had penalized such
innocuous speeches or communications, the Supreme Court observed:

“There is no proximate or even foreseeable connection between such instigation and the
public order sought to be protected under this section. We can only say that fundamental
rights cannot be controlled on such hypothetical and imaginary considerations. It is said that
in a democratic set-up there is no scope for agitational approach and that if a law is bad the
only course is to get it modified by democratic process and that any instigation to break the
law is in itself a disturbance of the public order. If this argument without obvious
limitations be accepted, it would destroy the right to freedom of speech which is the very
foundation of democratic way of life. 91 In Chintamanrao v/s State of M.P 92, Court observed
that “reasonable restriction” which the State could impose on the fundamental rights
“should not be arbitrary or of an excessive nature beyond what is required” in the interests
of public.93

security forces empowered to use reasonable force which may extend to causing death of
the person.

The petitioner humble submits before the Hon’ble Court that a provision of Anti National
and Disruptive Activities Prevention Act, 2019 empowers the security forces which may to
causing death of the person who resist the execution of any commands of law or is found
engaged in anti-national and terrorist activities. In such situation the provision provides no
scope for following the principles of natural justice neither it provides any procedure or
confirmation which the security force officer has to undergo before he exercise his
reasonable force which may extend to cause death. The provision is clearly violative of the
Right to life and personal liberty under Art. 21. If the military personnel shoot to kill just by
the reason that they were of such an opinion, then the personal liberty of the people comes

89 Ramnandan v/s State, AIR 1959 All 101

90 Cf. KartarSimghv/s State of Punjab, AIR 1956 SC
541
91 Supdt. v/s Ram Manohar, AIR 1960 SC 633 ; MadhuLimaye v/s D.M., AIR 1971 SC 2486
92 Chintamanrao v/s State of M.P., AIR 1951 SC 118
93 BishamberDayal Chandra Mohan v/s State of U.P., AIR 1982 SC 33; Bennett Coleman & Co. v/s UOI, AIR
1973 SC 106

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under great threat. This feature of the act is by no way a “due process of law” which can be
used as a defence against the deprivation of the right to life. The term ‘procedure
established by the law’ is synonymous to ‘a due process’. As held by Hon’ble SC in the
case Maneka Gandhi v/s Union Of India9495 that the procedure established by law has to be
fair, just and reasonable, not arbitrary and fanciful; otherwise it’s not a procedure at all and
also not satisfying Art. 21. Owing to this very inhumane clause, the army has allegedly
acted in a very extrajudicial and unreasonable manner in the Kashir. In this case it is held
that distinction must be drawn between the right of self-defence or private defence and use
of excessive force or retaliation. Very simply put, the right of self-defence or private
defence is a right that can be exercised to defend oneself but not to retaliate.

In the case ofExtra judicial execution victim families association (EEVFAM) and ors. v/s
Union Of India and ors.96The Petitioners claimed to have compiled 1528 alleged extra-
judicial executions carried out by the police and security forces in the State in question. It
was alleged that a majority of them had been carried out in cold blood while the victims
were in custody and allegedly after torturing them. The place of encounter was not
documented in some cases and theidentity of the victim was not known in some cases. Of
these 1528 cases documented by the Petitioners, they had made a more elaborate
documentation of 62 cases. The Petitioners had referred to 10 specific cases, out of 62,
where, according to them, eye- witness accounts exist of extra-judicial executions but the
police and the security forces justified them as encounters with militants. The Petitioners
said that not a single First Information Report (FIR) had been registered by the State police
against the police or the security forces even though several complaints had been made in
respect of the alleged extra- judicial executions. As a result of the failure of the State police
to register an FIR not a single investigation or prosecution had commenced and the cries of
anguish of the families of the victims had fallen on deaf ears. The Petitioners claimed that
the victims of the extra-judicial executions include innocent persons with no criminal
record whatsoever but they were later on conveniently labelled as militants.A very brief

94 Natural Justice is implicit in Art. 21: HussainaraKhatoon v/s Home Secretary, state of Bihar, AIR 1979 SC
95 ; State Of Maharastra v/s Champalal, AIR 1981 SC 1675
96 Extra judicial execution victim families association (EEVFAM) and ors. v/s UOI and ors; W.P. (Criminal)
No. 129 of 2012

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resume of the conclusions arrived at by the three-member Commission 97 was noted as

follows:

Case 1-Md. Azad Khan: The incident in which the deceased Md. Azad Khan was killed
was not an encounter nor was he killed in exercise of the right of self-defence. The
Commission further found that there was no evidence to conclude that the deceased was an
activist of any unlawful organization or was involved in any criminalactivities.

Case2-Khumbongmayum Orsonjit: The incident in which the deceased

KhumbongmayumOrsonjit died is not an encounter nor can the security forces plead that it
was in the exercise of their right of private defence.The Commission further found that
KhumbongmayumOrsonjit did not have any adverse criminal antecedents.

Case 3-Nameirakpam Gobind Meitei &NameirakpamNobo Meitei: The incident in question

is not an encounter but an operation by the security forces wherein death of the victims was
caused knowingly.

Case 4-Elangbam Kiranjit Singh: Even if the case put forward by the complainant cannot be
accepted, the case put forth by the security forces cannot also be accepted because they
exceeded their right of private defence. Therefore, this Commission is of the opinion that
the incident, in question, cannot be justified on the ground of self-defence.

Case 5-Chongtham Umakanta: This incident in which Umakanta died has compelled us to
come to the conclusion that though the manner in which he was picked up, as stated by the
complainant, cannot be accepted. The manner in which he died definitely indicates that this
could not have been an encounter.

Case 6-Akoijam Priyobrata @ Bochou Singh: The deceased did not die in an encounter. .
The Commission further found that there is no acceptable material to come to the
conclusion that the deceased had any adverse antecedents.

Further in the case of K. Satwant Singh v. State of Punjab98and State of Orissa v. Ganesh
Chandra Jew99it was held that if there is a "reasonable connection" between the official

97 Three-member Commission was constituted with Mr. Justice N. SantoshHegde, a former Judge of this Court
as the Chairperson; Mr. J.M. Lyngdoh, former Chief Election Commissioner and Mr. Ajay Kumar Singh,
former Director General of Police and Inspector General of Police, Karnataka as Members.
98 K. Satwant Singh v. State of Punjab, (1960) 2 SCR 89
99 State of Orissa v. Ganesh Chandra Jew, (2004) 8 SCC 40

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duty and the use of excessive force, then the use of excessive force will not be a ground for
denial of protection u/s 197 of the CrPC.

ISSUE3. WHETHER THE POWER OF UNION TO DEPLOY SECURITY FORCES IN

ANY PROVINCE WITHOUT ANY REQUEST OR PERMISSION OF PROVINCIAL
GOVERNMENT IS CONSTITUTIONAL OR NOT.

The counsel on behalf of the Petitioner humbly submits before the Hon’ble Court the power
of union to deploy security forces in any province without any request or permission of
provincial government is unconstitutional.

"List I-Union List, Entry 2.Naval, military and air forces, any other armed forces of Union.
List II-State List, Entry 1. Public order (but not including the use of naval, military or air
force or any other armed force of the Union in aid of the civil power)."

By the Constitution (Forty-Second Amendment) Act, 1976, Entry 2A was inserted in the
Union List. The said entry reads as follows:

"Deployment of any armed force of the Union or any other force subject to the control of
the Union or any contingent or unit thereof in any State in aid of the civil power, powers,
jurisdiction, privileges and liabilities of the members of such forces while on such
deployment."

Entry 1 of the State List was amended to read as under:

"Public order (but not including the use of any naval, military or air force or any other
armed force of the Union or of any other force subject to the control of the Union or of any
contingent or unit thereof in aid of civil power."

By the said amendment Article 257A was also inserted, which was deleted by the
Constitution (Forty-Fourth Amendment) Act, 1976 but no change was made in Entry 2A of
the Union List.

The Legislative competence Of Parliament to make a Law.

While examining the legislative competence of Parliament to make a law what is required
to be seen is whether the subject matter falls in the State List which Parliament cannot enter.
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If the law does not fall in the State List, Parliament would have legislative competence to
pass the law by virtue of the residuary powers under Article 248 read with Entry 97 of the
Union List and it would not be necessary to go into the question whether it falls under any
entry in the Union List or the Concurrent List. 100What is, therefore, required to be examined
is whether the subject matter of the Anti-National and Disruptive Activities Prevention Act,
2019 falls in any of the entries in the State List. The above mentioned Act is a law with
respect to "Public Order" and falls under Entry I of the State List.Entry 1 of the State List
states that the State Legislature has been conferred the exclusive power to enact a law
providing for maintenance of public order. This power does not, however, extend to the use
of armed forces in aid of the civil power and that Parliament has been empowered to make a
law in that regard and this position has been made explicit by Entry 2A of the Union List.
The submission is that the use of the armed forces in aid of the civil power contemplates the
use of armed forces under the control, continuous supervision and direction of the executive
power of the State and that Parliament can only provide that whenever the executive
authorities of a State desire, the use of armed forces in aid of the civil power would be
permissible but the supervision and control over the use of armed forces has to be with the
civil authorities of the State concerned. It has been urged that the given Act does not make
provision for use of armed forces in aid of the civil power. It is further urged that the
expression "civil power" in Entry 1 of the State List as well as in Entry 2A of the Union List
refers to civil power of the State Government and not of the Central Government, the power
to deal with "public order" in the widest sense vests with the States and that the Union has
the exclusive power to legislate and determine the nature of the use for which the armed
forces may be deployed in aid of the civil power and to legislate on and determine the
conditions of deployment of the armed forces and the terms on which the forces would be
so deployed but the State in whose aid the armed forces are so deployed shall have the
exclusive power to determine the purposes, the time period and the areas in which the
armed forces should be requested to act in aid of civil power and that the State retains a
final directorial control to ensure that the armed forces act in aid of civil power and do not
supplant or act in substitution of the civil power.

The Act passed is arbitrary and not passed according to due process of law.

100 UOI v. H.S. Dhillon, (1972) 83 ITR 582 (SC); S.P. Mittal v. UOI, : (1983) 1SCR 729;Kartar Singh v. State
of Punjab, (1994) Cri LJ 3139 .

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In the case of Maneka Gandhi v/s UOI 101, S.C. has asserted that Art. 21 is the heart of the
fundamental rights. The Court is thus concerned with the procedure as laid down in the
statute. The Court insisted time and again that while depriving a person of his personal
liberty, that procedure established by law must be strictly compiled with and must not be
departed from to the disadvantage of the person affected. The procedure contemplated by
Art.21 must answer the test of reasonableness in order to confirm to Art.14 for, in words of
Bhagwati J.

“The principle of reasonableness which legally as well as philosophically is an essential

element of equality or non-arbitrariness pervades Art.14 like a brooding omnipresence.”
According to Bhagwati J. Art.21 “embodies constitutional values of supreme importance in
a democratic society.”

Iyer J. has characterized Art.21 as the “procedural Magna Carta protective of life and
liberty.” In the case of E.P. Royappa v. State of Tamil Nadu, 102 his lordships states “Equality
is a dynamic concept with many aspects and dimensions and it cannot be ‘cribbed, cabined
and confirmed’ within traditional and doctrinaire limits. From a positivistic point of view,
equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies;
one belong to the rule of law in a republic while the other, to the whim and caprice of an
absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both
according to political logic and constitutional law and it therefore violative of Art.14.’ if the
state action is arbitrary, it would be violative of Art.14 and it cannot be protected on the
basis of the reasonable classification. In the case of Air India v/s NargeshMeerza 107, the
Hon’ble SC struck down the Air Indian Airlines Regulations on the retirement and
pregnancy bar on the services of air hostesses as unconstitutional on the ground that the
conditions laid down therein were entirely unreasonable and arbitrary. In the same way in
the given case also though Entry 1 of State List which contains the subject matter of state
list empowers the state legislature to make law related to Public order and Parliamnet can
only make law deploying armed forces in aid of civil power as clearly stated in Entry 2A of
Union List. The decision in Maneka’s Case is being followed by the SC in subsequent
cases; this case has laid down the following propositions as per Dr. D.D. Basu:

101 Maneka Gandhi v/s UOI, (1978) 1 SCC 248.

102 E.P. Royappa v/s State of Tamil Nadu, AIR 1974 SC 555.
107
Air India v/s NargeshMeerzaAIR 1981 SC 1829

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a. Art 19 and 21 are not water-light components. On the other hand, the expression of
‘personal liberty’ in Art.21 is of the widest amplitude, covering a variety of rights of

which some have been include in Art. 19 and given additional protection. Hence,
there may be some overlapping between Arts. 19 and 21.
b. In the result, a law coming under Art. 21 must also satisfy the requirements of Art.
19. In the other words, a law made by the state which seeks to deprive a person of
his personal liberty must prescribe a procedure for such deprivation which must not
be arbitrary, unfair or unreasonable.
c. Once the test of reasonableness is imparted to determine the validity of a law
depriving person of his liberty, it follows that such law shall be invalid if it violates
the principles of natural justice e.g., if it provides for the impounding of a passport
without giving the person affected an opportunity to be heard or to make a
representation against the order proposed.

Further in the case of State of Punjab v/s Khan Chand103, SC struck down a law empowering
the executive to requisition movable prope4rty, for the law did not lay down any purpose,
not even only ion emergency or in some special contingency; the execution was also not
required to specify the purpose of requisition and no principles was laid down for payment
of compensation and the power could be delegated and exercised even by petty official.
Also in the case of Shri Sita Ram Sugar Co. Ltd. v/s UOI 104, the SC (Mr Justice Thommen)
has laid down, that “any act of the repository of power, whether legislative or administrative
or quasi-judicial is open to challenge, if it is in conflict with the Constitution or the
governing authority Act or the general principle of the law of the land, or if it is so arbitrary
or unreasonable that no fair minded authority could ever have made it.”

Hence the counsel on the behalf of the Petitioner would humbly submit before the Hon’ble
Court that the primary task of the armed forces of the Union is to defend the country in the
event of war or when it is faced with external aggression. Their training and orientation is to
defeat the hostile forces. A situation of internal disturbance involving the local population
requires a different approach. Involvement of armed forces in handing such a situation

103 State of Punjab v/s Khan Chand AIR 1974 SC 543

104 ShriSita Ram Sugar Co. Ltd. v/s UOI AIR 1990 SC 1277 (1297)

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brings them in confrontations with their countrymen. Prolonged or too frequent deployment
of armed forces for handling such situations is likely to generate a feeling of alienation
among the people against the armed forces who by their sacrifices in the defense of their
country have earned a place in the hearts of the people.

PRAYER

Wherefore in the light of the issue raised, arguments advanced and authorities cited above,
it is humbly prayed that this Hon’ble SC may graciously please to adjudged and declare
that:

 PIL is maintainable.
 Act violates the fundamental rights of the citizen enshrined in Part III of
Constitution of Indiana.
 The given Act is unconstitutional.

Any other order as it deems fit in the interest of the equity, justice and good
conscience.

For This Act Of Kindness, Petitioner Shall Duty Bound Forever Pray.

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