Memorial On Behalf of Respondent

TEAM CODE: NRMC 447
4th PROF. N. R. MADHAVA MENON SAARCLAW MOOTING COMPETITION- INDIA ROUND 2018-19
FOURTH PROF. N. R. MADHAVA MENON SAARCLAW MOOTING COMPETITION- INDIA

ROUND 2018-19
BEFORE THE HON’BLE SUPREME COURT OF INDICA
IN THE MATTER OF:
MR. “X” ..........PETITIONER

&
NGO “TECHNOLOGY FOR ALL & JUSTICE-(TAJ)” ...........PETITIONER
&
MASTER “Z” ...........PETITIONER
V.
UNION OF INDICA ...........RESPONDENT
WRIT PETITION (CRIMINAL) NO. 980/2013

&
PUBLIC INTEREST LITIGATION
ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDICA

UNDER ART. 32 OF THE CONSTITUTION OF INDICA
-WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT-
-COUNSEL APPEARING ON BEHALF OF THE RESPONDENT-
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TABLE OF CONTENTS
INDEX OF AUTHORITIES…………………………………………………………………….IV
STATEMENT OF JURISDICTION…………………………………………………………….IX
STATEMENT OF FACTS……………………………………………………………………….X
SUMMARY OF ARGUMENTS……………………………………………………………...XIII
AGRUMENTS SUPPORTED BY AUTHORITIES………………………………...…………..1
I. WHETHER THE WRIT PETITIONS ARE MAINTAINABLE UNDER ART. 32
OF THE CONSTITUTION OF INDICA?.................................................................1-6
A. Whether the petitioners have a locus standi in order to avail themselves of the
constitutional remedy under Art. 32 of the Constitution of Indica?
B. Whether there is a substantial question of law to be considered by the Hon’ble
Supreme Court of Indica?
C. Whether the application moved by Mr. X claiming to be the biological father of
Master Z is maintainable?
II. WHETHER THE “COVERT OPERATION POLICY’ IS ILLEGAL,
UNCONSTITUTIONAL AND WITHOUT AUTHORITY OF LAW?..................7-17
III. WHETHER THERE IS VIOLATION OF THE FUNDAMENTAL RIGHTS OF
THE INDIVIDUALS?...............................................................................................17-27
A. Whether there has been infringement of the right to privacy of the individuals?
PRAYER……………………………………………………………………………………….XV
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LIST OF ABBREVIATIONS
& : And
¶ : Paragraph
AIR : All India Report
All : Allahabad
Anr. : Another
AP : Andhra Pradesh
Art. : Article
Bom : Bombay
Cal : Calcutta
Cl. : Clause
C.J. Chief Justice
Const. : Constitution
Del : Delhi
DNA : Deoxyribonucleic Acid
DPSP : Directive Principles of State Policy
ED. : Edition
Hon’ble : Honorable
I.E. : That is
J. : Justice
Ltd. : Limited
NGO : Non-Governmental Organization
No. : Number
Ors. : Others
PG. : Page
PIL : Public Interest Litigation
QB : Queens Bench
SC : Supreme Court
SCC : Supreme Court Cases
SCR : Supreme Court Reports
Sec. : Section
Sub. Cl. : Sub-Clause
TAJ : Technology for All & Justice
U/A : Under Article
U/S : Under Section
UK : United Kingdom
UOI : Union of India
US : United States
V./VS. : Versus
VOL. : Volume
WLR : Western Law Reports
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INDEX OF AUHTORITIES
CONSTITUTION
Constitution of India, 1950.
Const. of Indica…………………………...…………………………………………..…….passim
STATUTES
1. Indian Penal Code, 1860.
2. Narcotic Drugs and Psychotropic Substances Act, 1985.
3. U K Human Rights Act, 2000.
4. The Criminal Procedure Code, 1972.
5. The Indian Evidence Act, 1872.
6. European Convention on Human Rights, 1953.
CASES
1. A.K. Gopalan v. State of Madras, (1950) SCR 88.
2. AP Coop All Seed growers Federation Ltd. v. D. Achyuta Rao, (2007) 13 SCC 320.
3. B.K. Parthasarathi v. Government of A.P. And Others, 2000 (1) ALD 199.
4. Basheshar Nath v. The Commissioner of Income Tax, Delhi & Rajasthan, AIR 1959 SC
149.
5. Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748.
6. Bijoy Cotton Mills v. State of Ajmer, AIR 1955 SC 33.
7. Calcutta Gas Company Ltd. v. State of West Bengal and Ors., AIR 1962 SC 1044.
8. Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726.
9. Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore, AIR 1970 SC
2042.
10. Cooverjee v. Excise Commissioner, (1954) SCR 873.
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11. Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457.
12. Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101.
13. Express Newspaper Ltd. v. Union of India, AIR 1986 SC 872.
14. Gobind v. State of Madhya Pradesh & Anr., (1975) 2 SCC 148.
15. Jamshed Hormsuji Wadia v. Board of Trustees, Port of Mumbai, AIR 2004 SC 1815.
16. K. S. Puttaswamy and Anr. v. Union of India and Ors., AIR 2015 SC 3081.
17. Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159.
18. Kartar Singh v. State of Punjab, (1994) 3 SCC 569.
19. Kasturi Lal Lakshmi Reddy v. State of J&K, AIR 1980 SC 1992.
20. Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
21. Kharak Singh v. State of U.P., AIR 1963 SC 1295.
22. Krishna Kakkanth v. Govt. of Kerala, AIR (1997) SC 128.
23. Kusum Lata v. Union of India And Ors AIR SC 8225.
24. LIC v. Consumer Education and Research Centre, AIR 1995 SC 1811.
25. M S Bhut Educational Trust v. State of Gujarat, AIR 2000 Guj 160.
26. M. Janardhana Rao v. Joint Commissioner of Income Tax AIR 2005 SC 1309.
27. M.J. Sivani v. State of Karnataka, AIR (1995) SC 1770.
28. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
29. Mahesh Chandra v. Regional Manager, U.P. Financial Corpn, AIR 1993 SC 935.
30. Maneka Gandhi v. Union of India, AIR 1978 SC 597.
31. Markandeya v. State of A.P., AIR 1989 SC 1308.
32. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
33. Municipal Corporation, City of Ahmedabad v. Jan Mohd. Usmanbhai, AIR (1986) SC
1205.
34. Naraindas v. State of Madhya Pradesh, AIR 1974 SC 1232.
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35. Netai Bag v. State of West Bengal, AIR 2000 SC 3313.
36. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
37. Om Kumar v. Union of India, AIR 2000 SC 3689, 3702.
38. Papanasam Labour Union v. Madura Coats Ltd., (1995) SCC 1 501.
39. Partap Singh v. State of Punjab, AIR 1964 SC 72.
40. Paschim Band Khet Mazdoor Society v. State of West Bengal, (1996) 4 SCC 37.
41. Pathumma v. State of Kerala, (1978) 2 SCC 1.
42. PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732.
43. Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.
44. R.C. Cooper v. UOI, (1970) 1 SCC 248.
45. Ram Jawaya v. State of Punjab, AIR 1955 SC 549.
46. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740.
47. Ram Prasad v. State of Bihar, AIR 1953 SC 215.
48. Ramlila Maidan Incident v. Home Secretary, Union of India, (2012) 5 SCC 1.
49. Regional Manager, U.P. Financial Corpn, AIR 1993 SC 935.
50. S.P. Gupta v. Union of India, AIR 1982 SC 149.
51. Santokh Singh v. Delhi Administration, AIR (1973) SC 1091.
52. Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179.
53. Secretary, Govt. of India v. Alka Subhash Gadia, 1990 SCR, Supl. (3) 583.
54. Sharda v. Dharam Pal, (2003) 4 SCC 493.
55. Sharma Transport v. Govt. of A.P., AIR 2002 SC 322.
56. Sir Chunilal Mehta & Sons Ltd. v Century Spinning & Mfg. Co. Ltd, AIR 1962 SC
1314.
57. Sivarajan v. Union of India, AIR (1959) SC 556.
58. State of Bombay v. F.N. Balsara, AIR 1951 SC 318.
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59. State of Bombay v. Kathi Kalu Oghad, AIR 1961 SC 1808.
60. State of Madras v. Row, (1952) SCR 597.
61. State of Madras v. V.G Row, AIR 1952 SC 196.
62. State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5.
63. State of Maharashtra v. Rao Himmatbhai Narbheram, AIR (1971) SC 1157.
64. State of Punjab v. Dalbir Singh, AIR 2012 SC 1040 (1047).
65. State of Tamil Nadu v. K. Shyam Sunder, AIR 2011 SC 3470.
66. Thalappalam Service Cooperative Bank Limited v. State of Kerala, (2013) 16 SCC 82.
67. Union of India v. Paul Manickam, AIR 2003 SC 4622.
68. Unnikrishnan v. State of A.P., AIR 1993 SC 2178.
69. V.S Kuttan Pillai v. Ramakrishnan, AIR 1980 SC 185.
70. Virendra v. State of Punjab, AIR (1957) SC 896.
FOREIGN CASES
1. Associated Picture House v. Wednesbury Corporation, (1947) 2 All ER 680 (CA).
2. Council of Civil Service Unions. v. Minister for the Civil Services, (1984) 3 All ER 935,
951.
3. De Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Land and
Housing, (1999) 1 A.C. 69,80.
4. Gambia v. N' Jie, (1961) AC 617 (634).
5. Konninlijke Scholton-Honig v. Hoofproduktchap voor Akkerbouwprodukten. [1978]
ECR 1991.
6. Katz v United States, 389 US 347 (1967).
7. R v. Director of Serious Fraud Office, Ex parte Smith, [1993] AC 1.
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8. R v. Paddington, (1966) 1 QB 380.
9. v. Minister of Agriculture, Fisheries and Food, ex parte Federation Europeenne de la
Sante Animale (FEDESA), (1991) 1 C.M.L.R. 507.
BOOKS
1. AV Dicey, Law of Constitution, (10th ed., 1962).
2. Durga Das Basu, Commentary on the Constitution of India (9 th ed., 2014).
3. John Adler, General Principles of Constitutional and Administrative Law, (4th ed.,
Palgrave Macmillan, Basingstoke, United Kingdom, 2002).
4. John Austin, The Province of Jurisprudence Determined, (1st ed., Richard Taylor,
London, 1832).
5. M.P. Jain, ‘Indian Constitutional Law’ (6th ed, 2011).
ARTICLES AND REPORTS
1. Julian Rivers, Proportionality and Variable Intensity of Review, 65(1) Cambridge Law
Journal (2006).
2. Lord Denning, ‘What Next in Law’ https://isistatic.org/journal-
archive/ma/27_02/shenfield.pdf (Oct. 12, 2018, 05:56 PM).
3. Stephen Hall, The Persistent Spectre: Natural Law, International Order and Limits of
Legal Positivism European Journal of International Vol. 12(2)Law (2002)
DICTIONARY REFERRED
1. Black’s Law Dictionary (8th ed, 2004).
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STATEMENT OF JURISDICTION
The Petitioners have approached the Hon’ble Supreme Court of Indica u/a. 32 of the
Constitution of Indica1 as the questions for consideration relate to violation of fundamental
rights under Part III. However, the Respondent seeks permission of this Hon’ble Court to contend
the maintainability of the petitions.
1
INDIA Const. art. 32, i.e., 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
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.
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STATEMENT OF FACTS
‘Republic of Indica’ has ‘Federalism’ as one of its basic features. The Constitution of Indica
establishes the Supreme Court of Indica which is considered as the final interpreter of the
'Constitution of Indica' as well as the custodian of basic civil rights and liberties of its citizens.
The constitutional, legal and policy framework of Republic of Indica are pari materia to the
Republic of India.
Under the constitutional scheme of Indica, the State of A&P has a chequered history. Under the
constitutional scheme of Indica, State of A&P have Special constitutional arrangements have
been accorded in the federal scheme like a greater degree of state autonomy as well as special
powers to conduct their own affairs. The autonomy of A&P is pari materia to the Article 370 of
the Constitution of India. The State of A&P shares very hostile international boundary from
three sides. Due to the continuous tension and violation of ceasefire on its western front in the
State of A&P, the Republic of Indica is facing higher militancy and internal insurgency
Part II
Covert operations are a valuable law enforcement tool in the present day.
The Government of A&P has formulated a 'Covert Operation Policy' to break into the syndicate
of illegal drugs trafficking and their supply to the youth in the State of A&P. In the State of
A&P, the rate of drug abuse is alarming! Youths, aged 13 – 35, are reportedly more involved in
drug abuse and militancy and insurgency is also financed from the proceeds of the income
generated from the illicit drugs trafficking and their supply. The Police authorities in the State of
A&P facilitated the undercover operation by every means and also created various 'scenarios' to
integrate and penetrate its officers into the syndicate. The operation was immediately abandoned
after 2 years i.e., in 2012 by the new govt.
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PART III.
Mr. 'X', a local resident of Satna town in the State of A&P, voluntarily undertook the task of
imparting elementary education in a village named Rusul and used to take classes of children in
irregular manner.
On 13.06. 2013, a ghastly incident of rape on 8 year old child took place in the vicinity of the
school run by Mr. X. The medical report at the District Hospital of Satna recorded her as
'brought dead' and indicated absence of any further incriminating evidence which could suggest
a rape on the girl child.
The State Govt. of A&P ordered the transfer of the entire case to the premier investigative
agency i.e. CBI. The CBI seized every evidence including the DNA samples collected by the
Special Crime Branch- CID and all the case properties and started investigating the case. During
its investigation, the CBI found the curious case of Mr. 'X' who was not a duly appointed teacher
but engaged in the vocation of teaching in the remote village of Rusul in an irregular manner.
Investigation authorities collected the DNA samples in the vicinity of 500 meters of the school.
Later, The State Govt. of A&P ordered the transfer of the entire case to CBI. The CBI seized all
evidences including the DNA samples collected by CID. Subsequently, during investigation,
they found out that the DNA sample of Mr. 'X' matches with one of the DNA samples collected
during the undercover operation in the State of A&P. CBI arrested Mr. 'X' and decided to reopen
one of the FIRs made during the undercover operation.
The lawyer of Mr. 'X' filed a Writ Petition (Criminal) No. 980 of 2013 under Article 32 of the
Constitution of Indica alleging the arrest of Mr. 'X' as violative of various fundamental rights
and basic civil liberties.
Part IV
In the year 2017, during the monsoon season, one of the coastal states of Indica received
incessant rains for three consecutive weeks. The New York Times – the world's leading
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newspaper covered the story of 'Master Z’, a 9- year-old boy who had lost all his immediate
family members, and was in one of the rehabilitation camps. He also asserted that his mother
(now presumably deceased) told him once about his biological father being alive in some other
part of the country whom he never saw or met.
A leading NGO named 'Technology for All &Justice - (TAJ)' approached the Supreme Court of
Indica by way of Public Interest Litigation (PIL) for establishment of necessary infrastructure to
have a full proof DNA database for the DNA profiling of the individuals and seeking a series of
guidelines for the use and application of DNA technology in crime resolution and disaster victim
identification.
However, the hazards associated with such technology on core civil liberties, fundamental
values as well as rights are inconceivable.
Mr. ‘X’ also moved an application before Supreme Court claiming to be the biological father of
'Master Z' and he wants a declaration to that effect.
'Master Z' through his next friend also approached the Hon'ble Supreme Court of Indica seeking
a direction as not to release or use/ misuse of DNA samples collected by law enforcement
agency for the paternity test as claimed by Mr. 'X'. One of his specific prayers is to dismiss the
application of Mr. 'X' in pending W.P. (Crl.) No. 980 of 2013.
PART V.
Considering the substantial questions of law relating to the interpretation of the Constitution
involved, the three petitions along with applications have been referred to the constitution bench
under Article 32 of the Constitution.
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SUMMARY OF ARGUMENTS
1. WHETHER THE WRIT PETITIONS ARE MAINTAINABLE UNDER ART. 32 OF THE
CONSTITUTION OF INDICA?
It is humbly submitted before the Hon’ble Court that the writ petitions and the PIL filed by the
petitioners Mr. X, Master Z and the NGO ‘Technology & Justice for All’ respectively, are not
maintainable as there has been no violation of any fundamental right and the petitioners do no
have a locus standi.
Further, no substantial question of law is involved in the present case and interference is based
on pure question of fact which is entitled to be dismissed as per the test laid down under the case
of Chunni Lal. As per Supreme Court Rules, 2013, matters that do not involve substantial
question are to be decided by Division Bench and not by the Constitutional bench.
Moreover, the petitioner has not exhausted alternative remedies.
2. WHETHER THE “COVERT OPERATION POLICY’ IS ILLEGAL,
UNCONSTITUTIONAL AND WITHOUT AUTHORITY OF LAW?
The Covert Operation Policy passes the test of Wednesbury reasonableness as well the test of
doctrine of proportionality that govern the judicial review aspect of administrative discretion.
Also, the Policy is not in violation of any of the fundamental rights provided by the Constitution
and has been formulated in furtherance of compelling national interest. Covert operations assist
in detecting or obtaining evidence of offence that is otherwise difficult to investigate. The Policy
has been executed by police authorities and law enforcement agencies in an efficient manner and
thus has been carried out with the authority of law. In fact, the Policy is to enable the
establishment of welfare state, which is one of the core values of the Constitution of Indica. It
aims at bringing peace and safety in the society. The Policy is to give effect to Directive
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Principles of State Policy, to subserve the common good, and reasonable restrictions can
therefore be imposed on fundamental rights of the people to give effect to Directive Principles of
State Policy as per Art. 37 of the Constitution of India, for larger public interest.
3. WHETHER THERE IS VIOLATION OF THE FUNDAMENTAL RIGHTS OF THE
INDIVIDUALS?
It is humbly submitted before the Hon’ble Court that the ‘Covert Operation Policy’, brought by
the government is not in violation of any of the fundamental rights of the people. Right to
Privacy, though recognized as fundamental right, is not absolute and is subject to reasonable
restrictions. The Policy is meant to secure national interest and passes the test of proportionality
laid down in the case of K.S. Puttaswamy, to restrict the right to privacy of individuals. There is
no legitimate expectation of privacy because it is not reasonable in the view of society as
propounded in Katz. The Undercover Operation of the government is in accordance with
procedure established by law provided under Art. 21 of the Constitution, as it does satisfy the
requirements of Arts. 14 and 19 and is also just, fair and reasonable.
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ARGUMENTS SUPPORTED BY AUTHORITIES
1. THAT THE WRIT PETITIONS ARE NOT MAINTAINABLE UNDER ART. 32 OF THE
CONSTITUTION OF INDICA?
1. It is humbly submitted before this Hon’ble Court that the writ petitions filed by Mr. X and
Master Z; and the Public Interest Litigation filed by the NGO ‘Technology for All &
Justice’ are not maintainable as the petitioners have no locus standi in the instant case. It
includes no substantial question of law and the inference is based on pure question of fact
which is entitled to be dismissed.
2. The respondent further submits that in terms of Article 32 of the Constitution read with
Supreme Court Rules, 2013, only substantial questions involving the interpretation of the
provisions of the Constitution will be dealt by the Constitutional bench. 2
1.1. THE PETITIONERS DO NOT HAVE A LOCUS STANDI
3. The principle of locus standi is an age old concept that forms the basis of any action in a
court of law. Locus Standi is a Latin phrase meaning “place to stand”. According to
Black’s law Dictionary locus standi means the right to bring an action or to be heard in
given forum.3
4. It is to bring to the kind notice of this Hon’ble Court that, a person acting bona fide and
having sufficient interest in the proceedings of the case or the Public Interest Litigation
will alone have a locus standi and can approach the Court under Article 32 to wipe out the
violation of Fundamental Rights and genuine infraction of statutory provisions.
2
¶23, Moot problem,.
3
Black’s Law Dictionary, 952 (8th ed, 2004).
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5. It is humbly submitted that, in Calcutta Gas Company Ltd. v. State of West Bengal and
Ors.,4 a Constitution Bench of the Supreme Court observed: "The legal right that can be
enforced under Article 32 must ordinarily be the right of the petitioner himself who
complains of infraction of such right and approaches the Court for relief.” The basis of
entitlement of a writ under Article 32 of the Constitution is hence, a legal injury resulting
from the violation of a legal right of a person. The writ is maintainable by a person who is
aggrieved by an order which is to his detriment, pecuniary or otherwise, or causes him
some prejudice in one form or other. As observed by Lord Denning, in General of the
Gambia v. N' Jie5: "A person can be said to be aggrieved who has a genuine grievance
because an order has been made which prejudicially affects his interest."
6. The fundamental rights to be enforced under Article 32 must ordinarily to be right of the
petitioner himself. It is not competent for a person to seek the enforcement of the rights of
another except when the law permits him to do so. When a person acquires a locus standi,
he has to have a personal or individual right which was violated or threatened to be
violated.6
7. This principle emanates from the theory that the remedies and rights are correlative and,
therefore, only a person whose own right is in jeopardy is entitled to seek a remedy. 7 Lord
Denning in R v. Paddington8, observed that the court would not listen, of course, to a
mere busybody who was interfering in things which did not concern him. But it will listen
to anyone whose interests are affected by what has been done.
8. It is further submitted that under Art. 32 does not prescribe the persons or classes of
persons who can invoke the Supreme Court’s jurisdiction for redress of their grievances.
The matter of ‘standing’ thus lies within the realm of the Supreme Court. In the present
4
AIR 1962 SC 1044.
5
(1961) 617 AC (634).
6
Calcutta Gas Co. Ltd. V. State of West Bengal, AIR 1962 SC 1044.
7
S.P. Gupta v. Union of India, AIR 1982 SC 149.
8
(1966) 1 QB 380.
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case, there was no violation of any of the fundamental rights by the actions of the
respondents. The Government of A&P formulated the ‘Covert Operation policy’ to break
into the syndicate of illegal drugs trafficking and their supply to the youth in the State. 9
The policy was meant to curb the alarming situation and assuming arguendo, even if there
was any violation of the fundamental rights, such violations were not committed by the
actions of the respondents.
1.2. NO SUBSTANTIVE QUESTION OF LAW ARISES IN THE PRESENT CASE
9. It is contended by the respondents that no substantial question of law is involved in the
present case and the interference is based on pure question of fact which is entitled to be
dismissed. This court had laid down the test which says if the general principles to be
applied in determining the question of those principles the question would not be a
substantial question of law. It might involve question of law but not ‘substantial’ question
of law.
10. As per the Order XXXVIII, rule 1 of Supreme Court Rules, 2013 10 a petition which does
not raise a substantial question of law as to the interpretation of the Constitution may be
heard and decided by a Division Court of less than five Judges, and, during vacation, by
the Vacation Judge sitting singly. In the instant case, the petitions do not involve a
substantial question of law and should be referred to Division Bench.
11. The present case does not involve such ‘substantial’ question of law. In Jamshed
Hormsuji Wadia v. Board of Trustees, Port of Mumbai,11 the court emphasized that,
9
¶ 4, Moot problem.
10
Every petition under article 32 of the Constitution shall be in writing and shall be heard by a Division Court of
not less than five Judges provided that a petition which does not raise a substantial question of law as to the
interpretation of the Constitution may be heard and decided by a Division Court of less than five Judges, and,
during vacation, by the Vacation Judge sitting singly.
11
AIR 2004 SC 1815.
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“the very conferment of the discretionary power defies any attempt at exhaustive definition
of power. The power is permitted to be invoked not in a routine fashion but in very
exceptional circumstances as when a question of law of general public importance arises or
a decision sought to be impugned before the Supreme Court shocks the conscience. This
overriding and exceptional power has been vested in the Supreme Court to be exercised
sparingly and only in the furtherance of cause of justice in the Supreme Court in
exceptional cases only when special circumstances are shown to exist”.
12. The expression "substantial question of law" has acquired a definite connotation through
various judicial pronouncements. A Constitution Bench of the Apex Court, while
explaining the import of the said expression, observed that: “The proper test for
determining whether a question of law raised in the case is substantial would, in our
opinion, be whether it is of general public importance or whether it directly and
substantially affects the rights of the parties and if so whether it is either an open question
in the sense that it is not finally settled by this Court or by the Privy Council or by the
Federal Court or is not free from difficulty or calls for discussion of alternative views.” 12
13. In addition to that, to determine whether a substantial question of law is involved is an
open question in the sense that there is no scope for interference by the HC with a finding
recorded when such finding could be treated to be a finding of fact 13; if the question has
been well-settled by the Highest Court and it is merely a question of applying the settled
principles in determination of the matter.14 Hence, it is submitted that on account of the
fact that the position is well-settled by this Court in its earlier decisions 15, no substantial
question of law is involved in the present case.
12
Sir Chunilal Mehta and Sons. Ltd. v. Century Spinning and Manufacturing Co. Ltd., AIR 1962 SC 1314.
13
M. Janardhana Rao v. Joint Commissioner of Income Tax AIR 2005 SC 1309.
14
Sir Chunilal Mehta & Sons Ltd. v. Century Spinning &Mfg. Co. Ltd., AIR 1962 SC 1314; See also, Santosh
Hazari v. Purushottam Tiwari, (2001) 3 SCC 179.
15
Malabar Industrial Co. Ltd. v. CIT,(2000) 243 ITR 83.
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14. To be ‘substantial’, a question of law must be debatable, not previously settled by law of
the land or a binding precedent, and must have a material bearing on the decision of the
case, if answered either way, insofar as the rights of the parties before it are concerned. 16
15. The Apex Court has recognized that Right to privacy is a fundamental right emanating
from Art. 21, and is subject to reasonable restrictions. 17 Therefore, the contention of the
Petitioner that the Policy adopted by the State Govt. infringes upon the citizens’ right to
privacy is purely a question of fact which can be decided on the basis of predetermined
question of law as to the scope of right to privacy and hence, not a substantial question to
be considered by the constitutional bench.
1.3. THAT THE APPLICATION MOVED BY MR. X CLAIMING TO BE THE
BIOLOGICAL FATHER OF MASTER Z IS NOT MAINTAINABLE.
1.3.1. THERE EXISTED ALTERNATIVE REMEDY AND THE PETITIONER IS
REQUIRED TO EXHAUST THOSE LOCAL REMEDIES.
1. It is humbly submitted that Art. 32 is not an absolute right and are subject to the self-
imposed restraints evolved by the judiciary. It has been held that since Art. 32 confers
“extraordinary” jurisdiction, the same must be used sparingly and in circumstances where
no alternate efficacious remedy is available. 18 The reason for this is two-fold: first, to
reduce the increasing pendency of cases 19 and second, to inspire faith in the hierarchy of
16
Santosh Hazari v PurushottamTiwari, (2001) 3 SCC 179.
17
K. S. Puttaswamy and Anr. v. Union of India and Ors., AIR 2017 SC 4161.
18
Secretary, Govt. of India v. Alka Subhash Gadia, 1990 3 SCR 583; Avinash Chand Gupta v. State of Uttar
Pradesh, (2004) 2 SCC 726; Union of India v. Paul Manickam, AIR 2003 SC 4622.
19
P. N. Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732.
5|P a ge
Courts and the institution as a whole. 20 Therefore, the Petitioner is required to approach the
High Court or the family Court before approaching the Supreme Court.
1.3.2. THE DOCTRINE OF EXHAUSTION OF ALTERNATE REMEDIES IS NO
ABUSE TO ART. 32.
2. The petitioner may contend that the rule of exhaustion of local remedies is
unconstitutional and violative of the guarantee in Art. 32(1). However, it is submitted that
the right under Art. 32(1) is not so absolute that no rules of procedure apply to it. Art.
32(1) confers a right to move the SC by "appropriate proceedings". “Appropriate
proceedings” interpreted to mean “procedure relating to form, conditions of lodgement of
petitions, and compliance with a reasonable directions” 21. Indeed, procedural factors such
as res judicata22, delay in filing the petition and parallel proceedings 23 in another Court are
considered before entertaining the appropriateness of a particular proceeding. It is
submitted that the rule of exhaustion of local remedies is another such procedural guideline
and does not violate the right under Art. 32.
3. It is further submitted that there are two alternative efficacious remedies that are available
before the Petitioner in the instant case. First, to approach the High Court under Art. 226
and second, to approach Family Court.
20
Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159.
21
Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.
22
Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457
23
M.P. Jain, Indian Constitutional Law (6th ed, 2011).
6|P a ge
2. THAT THE ‘COVERT OPERATION POLICY’ IS LEGAL, CONSTITUTIONAL
AND HAS BEEN CARRIED OUT WITH THE AUTHORITY OF LAW
1. It is humbly submitted before the Hon’ble Court that the Covert Operation Policy passes the
test of principle of proportionality and also Wednesbury unreasonableness as it is a result of
objective administrative discretion. The ‘Policy’ is valid and is consistent with the provisions
of the Constitution of Indica.
2. Under the constitutional scheme, State of A&P has a chequered history. Special
constitutional arrangements like a greater degree of state autonomy and special powers have
been accorded in the federal scheme. It shares very hostile international boundary from three
sides and due to the continuous tension and violation of ceasefire on its western front in the
State of A&P.
2.1. THAT THE COVERT OPERATION POLICY BROUGHT BY THE
GOVERNMENT IS CONSTITUTIONAL
3. The respondent further submits that the policy is not arbitrary, unjust, and unfair since “mere
factor that some hardship or injustice is caused to someone is no ground to strike down the
rule altogether if otherwise the rule appears to be just, fair and reasonable and
constitutional.”24
4. Moreover, a piece of legislation which may impose unreasonable restrictions in one set of
circumstances may be eminently reasonable in a different set of circumstances. In such
cases, public interest should be kept in mind, as repeatedly determined by the Apex Court in
24
AP Coop All Seed growers Federation Ltd. v. D. A. Rao, (2007) 13 SCC 320.
7|P a ge
a series of judgments - State of Madras v. Row25, Cooverjee v. Excise Commissioner26
and Virendra v. State of Punjab.27
5. It is also brought to submission that a restriction which is commensurate with the need for
protection of the public cannot be said to be unreasonable,28even though it may cause
hardship in individual cases, as held by the Supreme Court in State of Maharashtra v. Rao
Himmatbhai Narbheram.29
6. The Hon’ble Supreme Court has repeatedly declared in numerous cases - Krishna
Kakkanth v. Govt. of Kerala, 30 Municipal Corporation, City of Ahmedabad v. Jan
Mohd. Usmanbhai31and M.J. Sivani v. State of Karnataka,32 that no restriction or
regulation can be said to be unreasonable merely because in a given case it operates harshly.
7. Altogether, it is submitted that the ‘Covert Operation Policy’ is consistent with the
Constitution of Indica and is not arbitrary, unjust and unfair. The operation carried out in
furtherance of the policy regulates the investigation, search and seizure of illicit drugs
trafficking by conferring powers on police authorities/law enforcement agencies. The police
authorities facilitated the operation by creating and executing various scenarios to integrate
and penetrate its officers into the syndicate.33
8. It is also stated that the very purpose of the policy is to ensure a safe and healthy society for
the youth of A&P who are involved in drug abuse. It is to protect them from indulging in
serious insurgency/militancy activities which pose a great threat to the national security.
25
(1952) SCR 597.
26
(1954) SCR 873.
27
AIR 1957 SC 896.
28
Sivarajan v. Union of India, AIR (1959) SC 556.
29
AIR 1971 SC 1157.
30
AIR 1997 SC 128.
31
AIR(1986 SC 1205.
32
AIR 1995 SC 1770.
33
¶ 6, Moot proposition.
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2.2. DNA EVIDENCE CANNOT BE CONSIDERED SELF-INCRIMINATING
EVIDENCE
9. According to the Supreme Court fingerprinting and other physical evidence is not covered
by article 20(3). In the case of State of Bombay v. Kathi Kalu Oghad,34 the Court came
across the question that whether or not the freedom against self-incrimination guaranteed
under article 20(3) of the Constitution of India – which is meant to protect a person
from torture from the police – can be extended to the collection of DNA. The Hon’ble Court
answered this question by stating that “to be a witness may be equivalent to ‘furnishing
evidence’ in the sense of making oral or written statement, but not in the larger sense of the
expression so as to include giving of thumb impression or impression of palm or foot or
fingers or specimen writing or exposing a part of the body by an accused person for purposes
of identification..”
10. In V.S Kuttan Pillai v. Ramakrishnan,35 the Supreme Court held that search of the
premises occupied by the accused without the accused being compelled to be a party to such
a search would not be violative of the constitutional guarantee enshrined in Article 20(3).
11. Relying on the judgments delivered by this Court, the respondent humbly contends that in
the instant case as well the question pertains to collection of DNA samples of the individuals
and it does not fall within the meaning of the phrase ‘to be a witness’ 36 and hence, there has
been no violation of petitioner’s right against self-incrimination.
34
AIR 1961 SC 1808: (1962) 3 SCR 10.
35
AIR 1980 SC 185.
36
INDIA Const. art. 20, cl. 3.
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2.3. THAT THE ‘COVERT OPERATION POLICY’ PASSES THE TEST OF
PROPORTIONALITY
12. It is humbly submitted before the Hon’ble Court that the Covert Operation Policy passes the
test of principle of proportionality as it is a result of objective administrative discretion.
13. The European doctrine of proportionality means that, ‘an official measure must not have any
greater effect on private interests than is necessary for the attainment of its objective’.37
14. Administrative action in India allegedly affecting fundamental freedoms has always been
tested on the anvil of proportionality. 38 Proportionality broadly requires that government
action must be no more intrusive than is necessary to meet an important public
purpose. 39 A decision is proportionate if (a) the executive objective is sufficiently important
to justify limiting a fundamental right, (b) the measures designed to meet the executive
objective are rationally connected to it and (c) the means used to impair the rights are no
more than necessary to accomplish the objective. 40
15. In the landmark case of K.S. Puttaswamy v. Union of India,41 majority of the judges have
agreed that the European standard of proportionality shall be applied to test privacy
infringements in the future. However, the rigor and technicality with which this doctrine is
applied will depend on the nature of the competing interests in question and will evolve on a
case by case basis. At the very least, any impugned action will continue to be tested on the
"just, fair and reasonable" standard evolved under Article 21 42 of the Constitution.
16. The ‘Covert Operation Policy’ was formulated to break into the syndicate of illegal drugs
trafficking and their supply to the youth in the State of A&P. The respondent also contends
37
Konninlijke Scholton-Honig v. Hoofproduktchap voor Akkerbouwprodukten. [1978] ECR 1991.
38
Om Kumar v. Union of India, AIR 2000 SC 3689, 3702.
39
John Adler, General Principles of Constitutional and Administrative Law, 385 (4th ed., Palgrave Macmillan,
Basingstoke, United Kingdom, 2002).
40
De Freitas v. Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing, (1999) 1 A.C. 69,80.
41
K. S. Puttaswamy and Anr. v. Union of India and Ors., AIR 2017 SC 4161.
42
INDIA Const. art. 21.
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that Covert operations are valuable law enforcement tool in the present day. They can assist
in detecting or obtaining evidence of offence that is otherwise difficult to investigate because
there are no witnesses who are willing to report it or give evidence to support a prosecution.
17. The objective of the policy was to contain the drug abuse and put a check on the local
insurgency and militancy which were supposedly being financed from the proceeds of the
income generated from illegal drug trafficking and their supply. Therefore, the conditions of
legitimacy, suitability, necessity and fair balance 43 have been met in the instant case as the
sole purpose of the policy was to ensure the safety of the youth who were being a victim of
the illicit drug trafficking.
2.4. THE COVERT OPERATION POLICY PASSES THE TEST OF WEDNESBURY
UNREASONABLENESS
18. When an administrative action is questioned as arbitrary, the principle of Wednesbury
Unreasonableness comes into operation. 44 It is a principle that applies to a decision which is
so outrageous in its defiance of logic or of accepted moral standards that no sensible person
who applied his mind to the question to be decided could have arrived at it. 45 It, therefore,
means that administrative discretion should be exercised reasonably and matters irrelevant to
the subject must be excluded from consideration. 46
19. In the present case, the drug abuse in the State of A&P was alarming. The illicit drug
trafficking and its supply to the youth rendered the situation quite sensitive. The subsequent
threat to national security, by the insurgency and militancy, also made it quite necessary for
43
R v. Minister of Agriculture, Fisheries and Food, ex parte Federation Europeenne de la Sante Animale FEDESA),
(1991) 1 C.M.L.R. 507; See also, Julian Rivers, Proportionality and Variable Intensity of Review, 65(1) Cambridge
Law Journal 174, 181 (2006).
44
Om Kumar v. Union of India, AIR 2000 SC 3689, 3704.
45
Council of Civil Service Unions. v. Minister for the Civil Services, (1984) 3 All ER 935, 951.
46
Associated Picture House v. Wednesbury Corporation, (1947) 2 All ER 680 (CA), 682-683.
11 | P a g e
the govt. to take a proper action. Thus, the policy passes the test of ‘Wednesbury
Unreasonableness’.
2.5. THAT THE ‘COVERT OPERATION POLICY’ WAS NOT ARBITRARY
20. ‘Arbitrarily’ means in an unreasonable manner, as fixed or done capriciously or at pleasure,
without adequate determining principle, not founded in nature of things, non-rational, not
done or acting according to reason or judgment, depending on will alone. 47 Since Maneka
Gandhi’s case,48 the Courts have adopted the Wednesbury principle that if the classification
was an arbitrary act of the State under Art. 12 of the Constitution, Art. 14 would strike it
down.49 Art. 14 protects us from both legislative and executive tyranny by way of
discrimination.50
21. The ‘Covert Operation Policy’ was a well thought-out administrative action, detailed and
planned in its implementation. There was no element of whim or ambiguity which would
make it fall within the purview of definition of ‘arbitrarily’, as propounded by this Hon’ble
Court. Therefore, in the instant case, Art. 14 would not spring into action as its application
has been limited by the legitimate and rational administrative discretion exercised.
22. Assuming arguendo that administrative discretion was applied in a wrong manner, the
Courts do not go into the merits of the exercise of discretion by the State as the Court cannot
go into the question whether the opinion formed by the State is right or wrong. 51 The Court
does not substitute its own views for that of the concerned administrative authority. 52
47
Sharma Transport v. Govt. of A.P., AIR 2002 SC 322.
48
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
49
Kasturi Lal Lakshmi Reddy v. State of J&K, AIR 1980 SC 1992, ¶ 14.
50
Basheshar Nath v. The Commissioner of Income Tax, Delhi & Rajasthan, AIR 1959 SC 149, ¶25.
51
Partap Singh v. State of Punjab, AIR 1964 SC 72.
52
Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740.
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2.6. THAT THE EXECUTIVE CAN MAKE POLICIES WITHOUT STATUTORY
SUPPORT
23. The administrative organ in India does not always need a statutory power to act and execute
a policy. 53 The executive function includes the determination as well as carrying out of
policy and therefore, has within its ambit initiation of legislation, maintenance of order
and promotion of social and economic welfare. 54
24. The executive can take administrative action without a specific statutory sanction over the
entire area falling within legislative competence of the concerned legislature, if it does not
infringe the legal right of any person. 55
25. In the instant case, the creation and implementation of ‘Covert Operation Policy’ was well
within the competence of the executive, its legislative correlative. Moreover, the policy was
formulated by the govt. of A&P to break into the syndicate of illegal drugs trafficking and
their supply to the youth.56 The policy also meant to put a check on the local militancy and
insurgency which was believed to be financed from the proceeds of the income generated
from the illicit drugs trafficking and their supply.57 Thus, it has been established that the
policy was formulated in the furtherance of national security and pubic benefits. This
Hon’ble Court must therefore resort to judicial deference as no legal rights of any person
have been violated.
26. In the case of State of Tamil Nadu v. K. Shyam Sunder,58 the court emphasized that,
“Merely because the law causes hardships or sometimes results in adverse consequences, it
cannot be held to be ultra vires the Constitution, nor can it be struck down”.
53
Ram Jawaya v. State of Punjab, AIR 1955 SC 549.
54
Id., at 556.
55
Naraindas v. State of Madhya Pradesh, AIR 1974 SC 1232.
56
57
¶ 5 Moot proposition.
58
State of Tamil Nadu v. K. Shyam Sunder, AIR 2011 SC 3470.
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2.7. THE COVERT OPERATION POLICY OF THE GOVERNMENT IS IN VIEW OF
COMPELLING STATE INTEREST.
27. The test of Compelling state interest laid down in Gobind59, provides that right to privacy
of the people can be compromised in view of compelling state interest. Threat to the
security of the state60, is undoubtedly in the nature of compelling state interest. In this case,
this Hon’ble Court considered the constitutional validity of a regulation which provided for
surveillance by way of several measures indicated in the said regulation. Further, it was held,
“right of privacy must be subject to restriction on the basis of compelling state interest.” 61
28. Article 21 guarantees right to life and personal liberty which encompasses right to privacy
but right to privacy is not absolute and is subject to restrictions on the basis of public
interest.62It is subject to restriction by the state to promote compelling interest of the state63 .
29. Thus, the ‘Covert Operation Policy’ brought by the government which restricts the rights
of the people in order to safeguard public order and security of the State, is valid.
2.8. NATIONAL SECURITY OF THE STATE
30. Several International Conventions 64 as well as legal provisions in other countries 65
recognize that fundamental rights of the people can be restricted in the interest of the
security of the state. Art. 19(2) of the Constitution of Indica provides that restrictions can be
imposed on rights guaranteed under Art. 19(1)(a), if there exists a threat to the security of the
state. Similarly, Art. 19(5) of the Constitution of Indica provides that restrictions can be
59
Gobind v. State of Madhya Pradesh, AIR 1975 SC 1378.
60
¶ 8, Moot Proposition.
61
Gobind v. State of Madhya Pradesh, AIR 1975 SC 1378.
62
Ibid.
63
B.K. Parthasarathi v. Government Of A.P. And Others, 2000 (1) ALD 199.
64
European Convention on Human Rights, 1953, art. 8.
65
U K Human Rights Act, 2000, art. 5, cl. 2.
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imposed on rights guaranteed under Art. 19(1)(d), in the interest of the general public. In
Gobind v. State of Madhya Pradesh,66 the Court has held that the right to privacy can be
restricted if there is a compelling state interest to be served and recognized threat to national
security in the nature of compelling state interest.
31. In the case of Ram Prasad v. State of Bihar,67 the government brought a legislation to
cancel the lease of a particular individual, even though the legislation did not satisfy the test
of reasonable classification, to maintain public peace and order.
32. As has been mentioned 68, it would be in the domain of CBI/ Central govt. of Indica to
reopen, re-investigate and re-assess the evidences in any of the FIRs made pursuant to the so
called ‘undercover operation’ as internal insurgency/militancy in the State of A&P poses a
threat to the ‘national security’ and the very idea of ‘Indica’. Thus, the “Covert Operation
Policy’ was formulated with the very objective of ensuring national security and public
welfare.
2.9. UNDERCOVER OPERATION HAS BEEN BROUGHT TO GIVE EFFECT TO
DIRECTIVE PRINCIPLES OF STATE POLICY
33. Art. 37 of the Constitution of Indica provides that though the directive principles of state
policy are not enforceable in a Court of law, they are fundamental in the governance of the
country and it is the duty of the state to enact laws in accordance with the principles.
Welfare state is one which seeks to promote prosperity and well-being of the people. 69
66
AIR 1975 SC 1378.
67
AIR 1953 SC 215.
68
¶ 8, Moot Proposition.
69
Paschim Band Khet Mazdoor Society v. State of West Bengal, (1996) 4 SCC 37.
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34. The Directive Principles of State Policy supplement the Preamble, which comprises the basic
structure of the constitution.70 These principles have been characterized as basic to our
social order, as they seek to build a socially just society.
35. Many rights have been compromised and diluted from time to time to enforce these
principles.71 Government formulated the ‘Covert Operation Policy’ for ensuring the
protection of citizens and to safeguard the youth from drug abuse and illegal activities which
are supposedly being carried out from the proceeds of the income generated from illicit
trafficking and supply of drugs.
36. Both the Directive Principles and the Fundamental Rights are equally fundamental. The
principles embody a commitment which was imposed by the Constitution-makers on the
State to bring about ‘economic and social regeneration teaming millions’; meaning that the
interest of an individual however important is secondary to the interest of the community. 72
37. A restriction which promotes any objective embodied in the Directive Principles is usually
considered reasonable by courts of law.73
38. Moreover, none of the world’s legal system can ensure a crimeless society. 74 What is
important is that the law provides for adequate measures to prevent such instances of crime
and the political community considers the rules as binding upon them. 75
39. Fundamental Rights and Directive Principles constitute true conscience and without
faithfully implementing the Directive Principles it is not possible to achieve the Welfare
State contemplated by the Constitution.76
70
Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461.
71
Vol. 3, D. D. Basu Commentary on The Constitution of India, , 3138 (8th ed., 2008).
72
Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461
73
Papanasam Labour Union v. Madura Coats Ltd., (1995) SCC 1 501.
74
John Austin, The Province of Jurisprudence Deternined, 90, (1st ed., 1832).
75
Stephen Hall, The Persistent Spectre: Natural Law, International Order and Limits of Legal Positivism Vol. 12(2)
European Journal of International Law 269, 270 (2002).
76
V. Markandeya v. State of A.P., AIR 1989 SC 1308.
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40. In a number of decisions the SC has given many Directive Principles of State Policy, the
status of fundamental rights. In Unnikrishnan v. State of A.P.,77 the directive principle
contained in Art. 45 has been raised to the status of a fundamental right. It has been held that
children from the age of 6 to 14 years have fundamental right to free and compulsory
education. Similarly, ‘equal pay for equal work’ has been held to be a fundamental right.
41. Moreover, individual rights cannot be absolute in a welfare state.78 It has to be subservient to
the rights of the public at large. In Santosh Singh v. Delhi Administration,79 it was held by
the Supreme Court “the test of reasonableness of restriction has to be considered in each case
in the light of the nature of right infringed, the purpose of the restriction, the extent and
nature of the mischief required to be suppressed and the prevailing social order and
conditions at the time. There can be no abstract standard of reasonableness and our
Constitution provides reasonably precise general guidance in that matter”.
3. THAT THE UNDERCOVER OPERATION OF THE GOVERNMENT DID NOT
VIOLATE ANY OF THE FUNDAMENTAL RIGHTS PROVIDED BY THE
CONSTITUTION
1. It is humbly submitted before this Hon’ble Court that the ‘Covert Operation Policy’ brought
by the govt. is not in violation of any of the fundamental rights guaranteed under Part III of
the Constitution of India or the basic civil liberties.
77
Unnikrishnan v. State of A.P., AIR 1993 SC 2178.
78
Confederation of Ex-serviceman Association v. Union of India, (2006) 8 SCC 399.
79
Santosh Singh v. Delhi Administration, AIR (1973) SC 1091.
17 | P a g e
2. The Supreme Court, in its earlier order, stated clearly that it is the duty of the government to
provide the people of the country with necessary conditions for leading a peaceful life as
promised by the Constitution under Art. 21.80
3. In the present case, there has been no violation of Article 21 of the Constitution. To establish
the violation Article 21, the act should be subjected to the equality test of Article 14 and test
of reasonableness under Article 19.81 Article 14 ensures fairness82 and guarantees against
arbitrariness. 83 It provides that every action of the government must be informed by reasons
and guided by public interest.84 Article 19 provides that a restriction can be characterized to
be reasonable if it strikes a balance between the fundamental right and restriction imposed
thereon.85
4. It is pertinent to note that there cannot be any such thing as absolute or uncontrolled liberty
wholly freed from restraint for that would lead to anarchy and disorder. The possession and
enjoyment of all rights are subject to such reasonable conditions as may be deemed to be
essential to the safety, health, peace, general order and morals of the community, as has been
held in various cases by Hon’ble Supreme Court of India. 86
5. Art. 19(2) provides that for the purposes of the security of the State the State can impose
reasonable restrictions on the exercise of Art. 19(1)(a). Right to remain silent is implied in
the freedom of speech and expression under Art. 19(1)(a),87 and therefore, the restrictions
mentioned under Art. 19(2) will apply on right to remain silent as well and a citizen can be
asked to part with information about oneself in the interest of the security of the state.
80
Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.
81
Maneka Gandhi v. Union of India, AIR 1978 SC 597.
82
Delhi Transport Corporation v. DTC Mazdoor Congress, AIR 1991 SC 101; Mahesh Chandra v. Regional
Manager, U.P. Financial Corpn, AIR 1993 SC 935.
83
Express Newspaper Ltd. v. Union of India, AIR 1986 SC 872; Netai Bag v. State of West Bengal, AIR 2000 SC
3313.
84
M S Bhut Educational Trust v. State of Gujarat, AIR 2000 Guj 160; LIC v. Consumer Education and Research
Centre, AIR 1995 SC 1811.
85
Om Kumar v. Union of India, AIR 2000 SC 3689
86
A.K. Gopalan v. State of Madras, (1950) SCR 88; Santokh Singh v. Delhi Administration, AIR (1973) SC 1091;
Laxmi v. State of U.P., AIR (1971) SC 873.
87
Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748.
18 | P a g e
6. The respondent further submits that in the case of State of Maharashtra v. Rao
Himmatbhai Narbheram,88 this Hon’ble Court held that a restriction which is
commensurate with the need for protection of the public cannot be said to be unreasonable 89,
even though it may cause hardship in individual cases.
3.1. REASONABLE RESTRICTIONS CAN BE IMPOSED ON FUNDAMENTAL
RIGHTS TO GIVE EFFECT TO DIRECTIVE PRINCIPLES OF STATE POLICY
7. Part III and Part IV of the Constitution of India are complementary and supplementary to
each other;90 the former provides for civil and political rights while the latter provides for
social and economic rights and one cannot have primacy over the other. 91
8. The Directive Principles of State Policy is in order to promote the broader egalitarian
principle.92 Government can impose reasonable restrictions on fundamental rights, for
promoting or effectuating a directive principle in public interest.93
9. A restriction which promotes any objective embodied in the Directive Principles is
usually considered reasonable by courts of law.94Thus in the case of State of Bombay v.
F.N. Balsara,95 the SC gave weightage to Art. 4796 which directs the state to bring about
prohibition of consumption of intoxicating drink except for medicinal purposes. It was held
by the SC that the restriction imposed by the Bombay Prohibition Act was a reasonable
restriction on the right to engage in any profession or carry on trade. Also, in Bijoy Cotton
88
AIR (1971) SC 1157.
89
Sivarajan v. Union of India, AIR (1959) SC 556.
90
Chandra Bhavan Boarding and Lodging, Bangalore v. State of Mysore, AIR 1970 SC 2042.
91
Pathumma v. State of Kerala, (1978) 2 SCC 1.
92
Sanjeev Coke Mfg. Co. v. Bharat Coal Ltd., AIR 1983 SC 239.
93
Papanasam Labour Union v. Madura Coats Ltd., (1995) SCC 1501.
94
Ibid.
95
AIR 1951 SC 318.
96
The State shall regard the raising of the level of nutrition and the standard of living of its people and the
improvement of public health as among its primary duties and, in particular, the State shall endeavour to bring
about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are
injurious to health.
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Mills v. State of Ajmer, 97 the SC upheld the Constitutional validity of the Minimum Wages
Act, 1948, because it was enacted to give effect to directive principles of State Policy
provided under Art. 4398 of the Constitution. Therefore, the fixation of wages for labourers
did not violate freedom of trade under Art. 19(5)99.
3.1.RIGHT TO PRIVACY IS NOT ABSOLUTE AND IS NOT VIOLATED BY THE
COVERT OPERATION POLICY
10. It is humbly submitted before this Hon’ble Court that right to privacy, like every other right
is not absolute100 and the government can impose reasonable restrictions as and when the
situation arises in the interest of the community. 101 European Convention on Human Rights
also recognizes that right to privacy is not absolute and lays down certain circumstances
which include national security, public safety and the economic well-being of the country,
protection of health, rights and freedoms of others, inter alia under which the right can be
interfered with, by the State.102
11. Furthermore, it was essential for the govt. of A&P to impose reasonable restrictions on the
Right to Privacy of its people, in view of larger public interest, to break into the syndicate of
illegal drugs trafficking and their supply to the youth.103 The policy was formulated with the
97
AIR 1955 SC 33.
98
The State shall endeavour to secure, by suitable legislation or economic organisation or in any other way, to all
workers, agricultural, industrial or otherwise, work, a living wage, conditions of work ensuring a decent standard of
life and full enjoyment of leisure and social and cultural opportunities and, in particular, the State shall endeavour to
promote cottage industries on an individual or co operative basis in rural areas.
99
Nothing in sub clauses (d) and (e) of the said clause shall affect the operation of any existing law in so far as it
imposes, or prevent the State from making any law imposing, reasonable restrictions on the exercise of any of the
rights conferred by the said sub clauses either in the interests of the general public or for the protection of the
interests of any Scheduled Tribe.
100
Sharda v. Dharam Pal, (2003) 4 SCC 493; See also, Ramlila Maidan Incident v. Home Secretary, Union of India,
(2012) 5 SCC 1.
101
Gobind v. State of Madhya Pradesh & Anr., (1975) 2 SCC 148; See also, Kartar Singh v. State of Punjab, (1994)
3 SCC 569.
102
European Convention on Human Rights, 1953, art. 8.
103
20 | P a g e
objective to contain internal insurgency/militancy in the State of A&P that poses a threat to
the ‘national security’ and the very idea of ‘Indica’.104
12. Lord Denning while stating that the English law must recognize right to privacy also
asserted that the exercise of the same cannot be free from limitations.105 Though right to
privacy is an inalienable right; its curtailment is necessary for stability of the society.106
Following these principles, interception of telephone calls to prevent organized crimes in
accordance with the provisions of MOCCA has also been held to be constitutionally valid by
SC.107
13. It is brought to the submission of the Hon’ble Court that this Court in J. K. S. Puttaswamy
v. Union of India,108 declared that right to privacy is not an absolute right but is subject to
certain reasonable restrictions. In this case, J. Chandrachud held “like other rights which
form part of the fundamental freedoms protected by Part III, including the right to life and
personal liberty, privacy is not an absolute right. A law which encroaches upon privacy will
have to withstand the touchstone of permissible restrictions on fundamental rights in the
context of Article 21 an invasion of privacy must be justified on the basis of a law which
stipulated a procedure which is fair, just and reasonable.”
14. Furthermore, in the abovementioned case, the Court went on to observe that an invasion of
life or personal liberty must meet the following tests:
a. The action must be sanctioned by law;
b. The proposed action must be necessary in a democratic society for a legitimate aim;
c. The extent of such interference must be proportionate to the need for such interference,
which ensures a rational nexus between objects and the means adopted to achieve them.
104
105
Lord Denning, ‘What Next in Law’ https://isistatic.org/journal-archive/ma/27_02/shenfield.pdf (Oct. 12, 2018,
05:56 PM).
106
R v. Director of Serious Fraud Office, Ex parte Smith, [1993] AC 1.
107
State of Maharashtra v. Bharat Shanti Lal Shah, (2008) 13 SCC 5.
108
(2015) 10 SCC 92.
21 | P a g e
d. There must be procedural guarantees against abuse of such interference” proportionality.
15. The Hon’ble Apex Court also opined that legitimate aims of the State would include for
instance protecting national security, preventing and investigating crime, encouraging
innovation and the spread of knowledge and prevention of dissipation of social welfare
benefits. These are matters of policy to be considered by the Union government.
3.1.1. THERE EXISTS NO REASONABLE EXPECTATION OF PRIVACY
16. It is also brought to the kind notice of this Hon’ble Court that reasonable expectation of
privacy is a standard which has its genesis in US law, and was laid down in the judgment
in Katz v United States,109 As per the judgment, there are two components of the test: “The
first was whether the individual, by his conduct has exhibited an actual (subjective
expectation of privacy), and the second, whether the subjective expectation is one that the
society is prepared to recognize as reasonable.”
17. Following the principle of reasonable expectation of privacy, the SC has observed: “Parting
with information does not deprive the individual of the privacy interest. The reasonable
expectation is allied to the purpose for which information is provided; while, legitimate aims
of the state, such as the protection of the revenue may intervene to permit a disclosure to the
state, the state must take care to ensure that the information is not accessed by a private
entity.”110
18. The respondent humbly submits that the American “reasonable expectation of privacy”
standard – which sets great store by what “society” perceives to be reasonable – was not the
standard that was adopted in Puttaswamy (indeed, Nariman J., in his concurring opinion,
109
389 US 347 (1967).
110
K. S. Puttaswamy and Anr. v. Union of India and Ors., AIR 2017 SC 4161 .
22 | P a g e
categorically rejected it). Here is what was adopted in Puttaswamy111: Privacy at a subjective
level is a reflection of those areas where an individual desire to be left alone. On an objective
plane, privacy is defined by those constitutional values which shape the content of the
protected zone where the individual ought to be left alone. 112
19. In the matter at hand, there exists no reasonable expectation as the action of govt. is in public
interest and for reasonable expectation to exist, it must seem reasonable to society as well.
Also the information is not accessible by any private entity. The purpose behind collection of
DNA samples is to curb the menace of drug abuse and their illicit trafficking which poses a
threat to the national security and the very idea of ‘Indica’.113
3.1.2. PRIVACY IS SUBJECT TO COMPELLING PUBLIC INTEREST
20. It is respectfully submitted that Right to privacy is not an absolute right flowing out of the
bouquet of rights under enshrined under Article 21114 The judgements in M.P. Sharma v.
Satish Chandra,115 (8 Judge Bench) and Kharak Singh v. State of U.P.,116 (6 Judge
Bench) which had made certain observations that right to privacy was not a guaranteed right
under Part III were premised on an understanding of Part III as per the law laid down in the
case of A.K. Gopalan117. A.K. Gopalan’s case was specifically overruled in R.C. Cooper v.
UOI,118 (11 judge bench) and thereafter further clarified to be so in Maneka Gandhi v.
U.O.I.,119 (7 judge bench). It was conclusively and consistently declared by the Supreme
Court in these cases that the right to privacy is not an absolute right.
111
Ibid.
112
(¶ 169, Puttaswamy plurality)
113
114
INDIA Const. art. 21.
115
AIR 1954 SC 300 : 1954 SCR 1077.
116
AIR 1963 SC 1295 : (1964) 1 SCR 332.
117
AIR 1950 SC 27 : 1950 SCR 88.
118
(1970) 1 SCC 248.
119
(1978) 1 SCC 248.
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21. Moreover, in Gobind v. State of Madhya Pradesh,120Justice Mathew in unequivocal terms
after noticing Kharak Singh’s case,121 held that the right to privacy is implicit in the concept
of individual autonomy and liberty. However, the Court categorically states that it is not an
absolute right and can be subjected to restrictions based on compelling public interest.
22. Further, the State may at times, require access to personal information for public good. In
this context, the citizen may be obliged to give access to such information for enhancing
citizens’ entitlements, access to services, prevention or detection of crime, national security,
investigation and prosecution of criminal offences.
23. People are exempted from disclosure of personal information which has no relationship to
any public activity or interest, or which would cause “unwarranted invasion of the privacy of
the individual” unless the authority is satisfied that the larger public interest justifies its
disclosure.122 In the present case, the future of youth of A&P is at stake as they are
vehemently engaged in illicit drug trafficking which is further associated with internal
insurgency and militancy.
24. On the whole, the Supreme Court has played a very creative role in this area as its constant
endeavour has been to create by judicial interpretation of the relevant provisions as many
safeguards- procedural as well as substantive-as possible, and, thus, somewhat to mitigate
the harshness of the law.
120
(1975) 2 SCC 148.
121
Ibid 95.
122
Thalappalam Service Cooperative Bank Limited v. State of Kerala, (2013) 16 SCC 82.
24 | P a g e
3.1.3. THAT PIL FILED BY THE NGO DOES NOT JUSTIFY PUBLIC INTEREST AND
POSES A THREAT TO THE PRIVACY
25. It is to bring to the kind notice of this Hon’ble Court that there must be real and genuine
public interest involved in the litigation and not merely an adventure of knight errant borne
out of wishful thinking. Public Interest Litigation which has now come to occupy an
important field in the administration of law should not be "publicity interest litigation" or
“private interest litigation” or “politics interest litigation”. 123
26. The Courts of justice should not be allowed to be polluted by unscrupulous litigants by
resorting to an extra ordinary jurisdiction. Public interest litigation is a weapon which has to
be used with great care and circumspection and the judiciary has to be extremely careful to
see that behind the beautiful veil of public interest an ugly private malice, vested interest
and/or publicity seeking is not the purpose. It is to be used as an effective weapon in the
armory of law for delivering social justice to the citizens. 124
27. In the instant case the PIL filed by the NGO ‘TAJ’ seeks establishment of necessary
infrastructure to have a full proof DNA database for DNA profiling of the individuals. This
is a matter of serious privacy concern and civil liberties of the individual. And the State is
duty bound to protect the fundamental rights of individuals unless there is a dire need to put
restrictions upon them. Every law/guideline issued after the commencement of the
Constitution has to be consistent with fundamental rights enshrined under Part III as
provided under Art. 13(2).125
123
Sachidanad pandey v. State of West Bengal (1987) 2 SCC 295 p 331; AIR 1987 SC 1109, (1987).
124
Kusum Lata v. Union Of India And Ors AIR 2006 SC 8225.
125
INDIA Const. art. 13, cl. 2.
25 | P a g e
3.1.3.1.JUSTICIABILITY OF FUNDAMENTAL RIGHTS
28. According to Art. 13(2), the State ‘shall not make any law’ which takes away or abridges the
Fundamental Rights; and a law contravening a Fundamental Right is, to the extent of the
contravention, void. Therefore, Article 13(2) clearly prohibits the making of any law by the
State which takes away or abridges rights, conferred by Part III of the Constitution. In the
event of such a law being made the same shall be void to the extent of contravention. 126
29. Article 13(2) is the crucial constitutional provision which deals with the post-Constitutional
laws. If any such law violates any Fundamental Right it becomes void ab initio, i.e., from its
inception. The effect of Art. 13(2) thus is that no Fundamental Right can be infringed by the
State either by legislative or administrative action.
30. Furthermore, Article 13 makes the judiciary, and especially the Apex Court, as the guardian,
protector and the interpreter of the Fundamental Rights. The courts perform the arduous task
of declaring a law unconstitutional if it infringes a Fundamental Right. It is the function of
the courts to ensure that no statue violates Fundamental Right. This is the exercise of its
protective role by the judiciary, i.e., protecting the Fundamental Rights from being violated
by a statute. A statute is declared unconstitutional and void if it comes in conflict with
Fundamental Right.
31. Article 13 confers a power as well as imposes an obligation on the Courts to declare a law
void if it is inconsistent with a Fundamental Right. This is a power of great consequence for
the Courts. The Supreme Court has figuratively characterised this role of the Courts as that
of a “sentinel on the qui vive. 127
32. The Supreme Court has further bolstered its protective role under Art 13(2) by laying down
the proposition that judicial review is the ‘basic’ feature of the Constitution.
126
State of Punjab v. Dalbir Singh, AIR 2012 SC 1040 (1047); State of Tamil Nadu v. K. Shyam Sunder, AIR 2011
SC 3470 : 2011 AIR SCW 5014 : 2011 (8) SCALE 474.
127
State of Madras v. V.G Row, AIR 1952 SC 196 : 1952 SCR 597.
26 | P a g e
33. Chandrachud C.J., as follows in Minerva Mills: 128 “It is the function of the Judges, and their
duty, to pronounce upon the validity of laws. If courts are totally deprived of that power, the
fundamental rights conferred on the people will become a mere adornment because rights
conferred on the people will become a mere adornment because rights without remedies are
as writ in water. A controlled Constitution will then become uncontrolled.”
34. Thus, the guidelines sought by the NGO regarding application of DNA technology pose a
threat to the privacy concern of individuals and civil liberties and it will consequently lead to
inconsistency which is a ground under Art. 13(2) to declare a law void.
128
Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.
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PRAYER
Wherefore in the light of the facts stated, arguments advanced, and authorities cited, the
Petitioner, humbly prays before the Hon’ble Court, to adjudge and declare that:
1. The petitions filed by Mr. ‘X’ and ‘Maser Z’ filed under Art. 32 of the Constitution of
Indica be dismissed.
2. The PIL filed by NGO ‘TAJ’’ be dismissed.
And/or
Pass any other order that it deems fit in the interest of Justice, Equity and Good Conscience.
For This Act of Kindness, the Respondent Shall Duty Bound Forever Pray.
Sd/
(Counsel for the Respondent)
XV | P a g e

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TEAM CODE: NRMC 447

FOURTH PROF. N. R. MADHAVA MENON SAARCLAW MOOTING COMPETITION- INDIA

BEFORE THE HON’BLE SUPREME COURT OF INDICA

IN THE MATTER OF:

MR. “X” ..........PETITIONER

UNION OF INDICA ...........RESPONDENT

WRIT PETITION (CRIMINAL) NO. 980/2013

ON SUBMISSION TO THE HON’BLE SUPREME COURT OF INDICA

-WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT-

-COUNSEL APPEARING ON BEHALF OF THE RESPONDENT-

AGRUMENTS SUPPORTED BY AUTHORITIES………………………………...…………..1

I. WHETHER THE WRIT PETITIONS ARE MAINTAINABLE UNDER ART. 32

OF THE CONSTITUTION OF INDICA?.................................................................1-6

constitutional remedy under Art. 32 of the Constitution of Indica?

B. Whether there is a substantial question of law to be considered by the Hon’ble

Supreme Court of Indica?

C. Whether the application moved by Mr. X claiming to be the biological father of

II. WHETHER THE “COVERT OPERATION POLICY’ IS ILLEGAL,

UNCONSTITUTIONAL AND WITHOUT AUTHORITY OF LAW?..................7-17

III. WHETHER THERE IS VIOLATION OF THE FUNDAMENTAL RIGHTS OF

Constitution of India, 1950.

1. Indian Penal Code, 1860.

2. Narcotic Drugs and Psychotropic Substances Act, 1985.

3. U K Human Rights Act, 2000.

4. The Criminal Procedure Code, 1972.

5. The Indian Evidence Act, 1872.

6. European Convention on Human Rights, 1953.

1. A.K. Gopalan v. State of Madras, (1950) SCR 88.

5. Bijoe Emmanuel v. State of Kerala, AIR 1987 SC 748.

6. Bijoy Cotton Mills v. State of Ajmer, AIR 1955 SC 33.

8. Chand Gupta v. State of Uttar Pradesh, (2004) 2 SCC 726.

10. Cooverjee v. Excise Commissioner, (1954) SCR 873.

11. Daryao v. The State of Uttar Pradesh, AIR 1961 SC 1457.

13. Express Newspaper Ltd. v. Union of India, AIR 1986 SC 872.

17. Kanubhai Brahmbhatt v. State of Gujarat, AIR 1987 SC 1159.

18. Kartar Singh v. State of Punjab, (1994) 3 SCC 569.

20. Keshavananda Bharti v. State of Kerala, AIR 1973 SC 1461.

21. Kharak Singh v. State of U.P., AIR 1963 SC 1295.

22. Krishna Kakkanth v. Govt. of Kerala, AIR (1997) SC 128.

23. Kusum Lata v. Union of India And Ors AIR SC 8225.

27. M.J. Sivani v. State of Karnataka, AIR (1995) SC 1770.

28. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.

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

31. Markandeya v. State of A.P., AIR 1989 SC 1308.

32. Minerva Mills Ltd. v. Union of India, AIR 1980 SC 1789.

34. Naraindas v. State of Madhya Pradesh, AIR 1974 SC 1232.

35. Netai Bag v. State of West Bengal, AIR 2000 SC 3313.

36. Olga Tellis v. Bombay Municipal Corporation, AIR 1986 SC 180.

37. Om Kumar v. Union of India, AIR 2000 SC 3689, 3702.

39. Partap Singh v. State of Punjab, AIR 1964 SC 72.

41. Pathumma v. State of Kerala, (1978) 2 SCC 1.

42. PN Kumar v. Municipal Corp of Delhi, 1988 SCR (1) 732.

43. Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996.

44. R.C. Cooper v. UOI, (1970) 1 SCC 248.

45. Ram Jawaya v. State of Punjab, AIR 1955 SC 549.

46. Ram Manohar Lohia v. State of Bihar, AIR 1966 SC 740.

47. Ram Prasad v. State of Bihar, AIR 1953 SC 215.

49. Regional Manager, U.P. Financial Corpn, AIR 1993 SC 935.

50. S.P. Gupta v. Union of India, AIR 1982 SC 149.

51. Santokh Singh v. Delhi Administration, AIR (1973) SC 1091.

52. Santosh Hazari v. Purushottam Tiwari, (2001) 3 SCC 179.

54. Sharda v. Dharam Pal, (2003) 4 SCC 493.

55. Sharma Transport v. Govt. of A.P., AIR 2002 SC 322.