Documenti di Didattica
Documenti di Professioni
Documenti di Cultura
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TABLE OF CONTENTS
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1. List of Abbreviations..........................................................................................................2
2. Index of Authorities............................................................................................................3
2.1 Case Laws.....................................................................................................................3
2.2 Statutes and Guidelines.................................................................................................3
2.3 Books............................................................................................................................3
2.4 Websites........................................................................................................................3
3. Statement of
Jurisdiction.....................................................................................................4
4. Statement of Facts...............................................................................................................5
5. Issues...................................................................................................................................7
6. Summary of Arguments......................................................................................................7
7. Arguments Advanced
7.1 Whether there is any violation of fundamental right under article 21 of the
constitution of
India?........................................................................................................................8
8. Prayer................................................................................................................................12
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LIST OF ABBREVIATIONS
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&And
AIR..All India Reporter
HC .High Court
Honble .Honourable
Ltd. .Limited
Ors.Others
Para.......................................................................Paragraph
P....Page
SC ....................................................................................................................Supreme Court
SCC.....................................................Supreme Court Case
SecSection
v.....Versus
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INDEX OF AUTHORITIES
CASE LAWS
STATUTES
BOOKS
1. D.D.Basu, Commentary on the Constitution of India, Part 3, 8th Edition 2008
2. M.P.Jain , Indian Constitutional Law, Sixth Edition 2010, Lexisnexis
3. V.N.Shukla, Constitution of India, 12th edition, Eastern Book Company
WEBSITES
1. www.manupatra.com
2. www.westlaw.com
3. www.indiankanoon.com
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STATEMENT OF JURISDICTION
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The counsel for the Respondent most humbly and respectfully submits to the jurisdiction of
this Honble High Court and accepts that the court has the power under Article 226 1 of the
Constitution of India to hear the present matter and adjudge accordingly.
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STATEMENT OF FACTS
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1. Mr. Sudhakaran is the son of Mr. Raghunandan met with an accident on 18 th Jan, 2012
on the Trivendrum and Chochin Highway. He sustained severe intestinal damage and
contusion of the liver as well as ancillary injuries. He was taken to the Apollo
1 Power of High Courts to issue certain writsNotwithstanding anything in Article 32 every High Court shall
have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of
them, for the enforcement of any of the rights conferred by Part III and for any other purpose
Hospital in Trivendrum at where the doctors advised Mr.Raghunandan to take his son
to Mayot Hospital in Chennai. They also advised Mr. Raghunandan that his son has to
undergo operation within twenty four hours else, his son will suffer paralysis and may
succumb.
2. The doctors at Apollo hospital fixed operation on 19 th Jan, 2012, informed
Mr.Raghunandan that his son has to travel with artificial life support system.
Mr.Raghunand an immediately contacted Mr.Avinash, the agent of Kingfisher Airlines
at Trivendrum for booking the flight tickets by explaining the condition of his son.
3. Mr.Avinash Airlines agent booked the tickets for Mr.Raghunandan in Kingfisher
Airlines from Trivendrum to Chennai via Bangalore transit ticket and also informed
him about the arrangements he made with the Kingfisher Airlines for carrying on the
life saving machine till Bangalore and mentioned that the further arrangements in the
connecting flight shall be made by the Kingfisher Airlines personnel.
4. Mr. Raghunandan along with his son who is with life support system boarded the
flight at 4 pm on 18th jan,2012.Exactly at 5.30 pm it reached the Bangalore airport
where Mr. Raghunandan was asked to wait for the jet airlines flight which is
scheduled to take off at 7 pm on the same day.
5. Around 6.45 pm jet airlines officials informed Mr. Raghunandan that as per the
conditions in cl.8 of jet Airlines the bearer of this certifies that he/she is in fit
condition to fly and is not suffering from any health problem which may be a
hindrance to his travel. So they cant board his son into the jet Airlines Flight.
6. Mr.Raghunandan pleaded with the Jet Airlines authorities to take note of the
seriousness of his son and requested them to allow their travel. Inspite of all the pleas
by Mr.Raghunandan, the officials refused to board his son into the Jet Airlines flight.
they stopped the vehicle for further investigation. Mr.Raghunandan informed the
Inspector who is in charge there about the emergency situation and requested him to
allow the journey. Mr.Raghunandan also pleaded before the Inspector that his son has
got right to life a constitutional right guaranteed under Art. 21 of the Constitution.
The inspector refused to consider anything and said proper procedure is required to be
allowed.
10. The time they reached the hospital, the doctors informed Mr.Raghunandan that his son
was already attacked by a paralytic stroke and paralyzed one hour before. They also
informed him that he wont be able to move any limbs of his body below his neck and
also will remain in coma for the rest of his life.
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ISSUSED RAISED
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SUMMARY OF ARGUMENTS
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It is humbly submitted before this Honble court that there is no violation of fundamental
right under Article 21 because there is nothing to show that the act carried out by police was
in contravention with the procedure established by law.
The act of the police was to examine the vehicle which was a routine check, and in
consonance with the law, hence in accordance with the procedure established by law, and thus
there is no violation of Article 21.
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ARGUMENTS ADVANCED
ISSUE 1: Whether there is any violation of fundamental right under Article 21 of the
Constitution of India?
It is humbly submitted before the Honble court that there is no violation of any fundamental
right by the state.
Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law.
Art 21 is not an absolute right given to person against the state. It has certain restriction
which are attached to it. Procedure established by law as given in Art 21 is not any
ordinary law but should be an enacted law.
As held in the case of, Francis Coralie Mullin vs Administrator Union of Delhi 2, any
act which is done or carried out in accordance with the procedure laid down by any statute,
then there cannot be any violation of Art.21 as everything is done according to the law and
hence cannot be taken as infringing someones fundamental right, in this case, under
Art.21 of constitution of India.
Same was also laid in the case of, Satwant Singh Sawhney v. D. Ramarathnam APO3.
As held in the case of Ramesharan vs UOI4 , by the Honble Supreme Court that any
interference by police with the freedom of a person is infringement of Art.21 if it is not
authorized by the law. Therefore visit by police at night is infringement as it is not
authorized. If the act is authorized it cannot be claimed as a violation.
Thus, it can be inferred from the above cases that violation occurs only when there is
something done which is not authorized by law, but in this case, the act of the police was
authorized by the law.
So the act of the police, i.e. stopping the vehicle and asking for the licence was an act that
was an enacted law under the Motor Vehicles Act, 1988 which is a central statute and thus
enacted by the legislature. So any act done by the police following the procedure
enshrined in the statute comes within procedure established by law.
In the case of Narendrajit Singh vs UOI5, it was held that, an accused could not be
released even if he got bail because of pendency of several cases in which production
warrants had been issued, it was held there was no violation of Article 21.
Similarly, in the present case here, even though it was an emergency but it was the duty of
the police to check the vehicle and especially when it was found that the driver license had
already expired. The fact cannot be ignored that, the license was expired and thus driving
the vehicle was illegal and the police needed to take the regular course of action according
to the procedure generally followed in such cases.
In the case of, Rupinder Singh Sodhi and Another vs Union of India and Others 6 it was
held that no one is entitled to barricade a highway so as to prevent members of the public
from using it but the police, whose duty it is to enforce law and order are entitled in the
discharge of that duty to impose reasonable restraints on the physical movement of
members of the public to protect public property and to avoid needless inconvenience to
other citizens in their lawful pursuits. But all such restraints on personal liberty, if at all,
have to be commensurate with the object which furnishes their justification.
Thus, in the present case also the obstruction of the vehicle for checking was the duty of
the police, and was within his rights when he stopped the ambulance for checking as it was
a part of his duty to enforce the law and order in a way which he was assigned to carry it
out. Thus it was perfectly reasonable and justified on part of police to stop and there arises
no dispute regarding illegality in stooping the vehicle on the highway for checking.
No Malafide Intention
Thus, it was in furtherance of this duty of the police that, he carried out the checking and
there was no other malafide intention of the policeman behind the act which he did and this is
very important to prove here because, while performing an act prescribed through procedure
established by law, the intention plays a major role.
In the case of, State through CBI v. Narayan Waman Nerukar7, SC held that while
considering the question of delay in trial, the court has a duty to see whether the prolongation
6 1983 AIR SC 65
was on account of any delaying tactics adopted by the accused and other relevant aspects
which contribute to the delay.
Hence, while considering any question of infringement while performing an act prescribed
through procedure established by law, the intention plays a major role. If the victim suffered
by mischief or any delaying tactics of an investigating agency or police only then can there be
violation. If there is no such malafide intention and is mere discharge of a regular duty, it is
not violation.
Fundamental rights are guaranteed to person, but sometimes under some special
circumstances they are not applicable to each and every person in the same way. If some act
is infringing the right of any particular individual in some special circumstance, then it cannot
be said to be in contravention of the fundamental rights as a whole. Therefore, stress on
individual liberty cannot be laid down as the sole criteria for violation of Art 21.
In Javed vs. State of Haryana8, it was held that test of individual liberty cannot be stressed
so as to give a go-bye to justice and established duties.
Also in case of, State of Andhra Pradesh vs. Nallamili Rami Reddy 9, it was held that,
merely because A.P. Charitable & Hindu Institution & Endowment Act results in some
hardships to some tenant, could not be held as deprivation of life.
Therefore, it can be inferred here that, merely because some act/statute results in loss of
personal liberty of a particular individual, in this case the petitioner, therefore cannot claim
violation of fundamental right under Article 21.
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PRAYER
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Wherefore it is prayed, in light of the issues raised, arguments advanced, and authorities
cited, that this Hon'ble Court may be pleased to:
Declare that there was no violation of Article 21 and therefore the State is not liable to
pay compensation of any kind to the petitioners.
And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience.
For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.
Sd/-