Participant Code……..…..

INTERNAL MOOT COURT COMPETITION, 2013

Association for Protection of Personal Liberties & Ors. ……….Petitioners

Versus
Union of Royalsthan……………Respondent

Writ Petition under Article 32 of The Constitution of Royalsthan

MEMORIAL FOR THE PETITIONERS

Memorial for the Petitioners

 TABLE OF CONTENTS

TABLE OF CONTENTS

 LIST OF ABBREVIATIONS - - - - - - 2

 INDEX OF AUTHORITIES - - - - - - 4
 BOOKS AND COMMENTARIES - - - - - 4
 CASES CITED - - - - - - - - 5
 ACTS, RULES AND INSTRUCTIONS- - - - - 7
 REPORTS OF COMMITTEES- - - - - - 7
 DICTIONARIES- - - - - - - - 7
 STATEMENT OF JURISDICTION - - - - - 8
 STATEMENT OF FACTS - - - - - - 9
 QUESTIONS PRESENTED - - - - - - 10

 SUMMARY OF PLEADINGS - - - - - - 11
 PLEADINGS AND AUTHORITIES - - - - - 12

 PRAYER - - - - - - - 23

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 TABLE OF CONTENTS

LIST OF ABBREVIATIONS

1. &: And
2. A.P. : Andhra Pradesh
3. AIR: All India Reporter
4. All. : Allahabad
5. Art. : Article
6. Bom. : Bombay
7. Cal. : Calcutta
8. Co. : Company
9. Corp. : Corporation
10. Cri. : Criminal
11. Cri. L.J./ Cr L.J. : Criminal Law Journal
12. DB : Division Bench
13. Del. : Delhi
14. Dr. : Doctor
15. Ed./ Edn. : Edition
16. Gau. : Gauhati
17. Guj. : Gujarat
18. HC : High Court
19. Hon’ble: Honourable
20. Kar: Karnataka
21. Ker: Kerala
22. Lah. : Lahore
23. Ltd.: Limited
24. M. P. : Madhya Pradesh
25. Mad. : Madras
26. N.C.T. : National Capital Territory

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 TABLE OF CONTENTS

27. Nag. : Nagaland

28. No. : Number
29. NOC :Notes On Cases
30. Ori. :Orissa
31. Ors. : Others
32. p. : Page
33. pp. : Pages
34. Punj. : Punjab
35. Pvt. : Private
36. Raj. : Rajasthan
37. SC: Supreme Court
38. SCC: Supreme Court Cases
39. SCR: Supreme Court Reports
40. Sec. : Section
41. Supp. : Supplementary
42. T.N: Tamil Nadu
43. U.P. : Uttar Pradesh
44. US/USA: United States of America
45. v. : Versus
46. Vol. : Volume

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 INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

BOOKS AND COMMENTARIES

1. Arvind P Datar, Commentary on the Constitution of India, Vol I, II & III, Second Edition
2001, Wadhwa & Company Nagpur.
2. Chaudhari & Chaturvedi’s Law of Fundamental Rights, Fourth Edition, Reprint 2007,
Delhi Law House.
3. Chaudhari’s Law of Writs, Fifth Edition 2003, Law Publishers (India) Private Limited.
4. Dr. J. N. Pandey, Constitutional Law of India, Forty Fourth Edition 2007, Central Law
Agency.
rd
5. Dr. R.G Chaturvedi’s, Law of Writs and Other Constitutional Remedies, 3 Ed., Bharat
Publications Ltd.
6. Durga Das Basu, Law of the Press, (4th Ed. 2002), Wadhwa Nagpur.
7. Durga Das Basu, Shorter Constitution of India, Thirteenth Edition, Reprint 2006,
Wadhwa Nagpur.
8. G Ramachandran, Law of Writs, Vol I & II, Sixth Edition, Eastern Book Company.
9. H. M. Seervai, Constitutional Law of India, Vol 1 & 2, Fourth Edition, Reprint 2006,
Universal Law Publishing Company.
10. Justice B L Hansaria’s Writ Jurisdiction, Third Edition, Reprint 2006, Universal Law
Publishing Company.
11. Liberty, Equality & Justice: Struggles for a New Social Order, Edited by S. P. Sathe &
Sathya Narayan, First Edition 2003, Eastern Book Company Pvt. Ltd.
12. M P Jain, Indian Constitutional Law, Fifth Edition, Reprint 2003, Wadhwa & Company
Nagpur.

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 INDEX OF AUTHORITIES

13. M.N Kaul & S. L Shakdher, Practice and Procedure of Parliament, 6th Ed., Lok Sabha
Secretariat, Metropolitan Books Co. Pvt. Ltd.
14. P Ishwara Bhat, Fundamental Rights: A Study of their Interrelationship, First Edition
2004, Eastern Law House.
15. P M Bakshi, The Constitution of India, Ninth Edition 2009, Universal Law Publishing
Company.
16. Sebastian Paul, Forbidden Zones: Law and the Media, 2010, Lavanya Books, Cochin.
17. Subhash C. Kashyap, Parliamentary Procedure- Law, Privileges, Practice and
Precedents, statement of facts, Vol. 1, Universal Law Publishing Co. Pvt. Ltd.
18. WILSON, Cases and Materials on Cosntitutional Law, 1966.
19. V N Shukla, Constitution of India, Tenth Edition, Reprint 2003, Eastern Book Company.

CASES CITED

1. A D M Jabalpur v Shivakant Shukla, AIR 1976 SC 1207.

2. A.K Gopalan v State of Madras, AIR 1950 SC 27.
3. A.S. Sulochana v C. Dharmalingam, AIR 1987 SC 242.
4. Babulal Parate vs The State Of Bombay And Anr., AIR 1960 SC 51.
5. Bandhu Mukti Morcha v. Union of India, AIR 1984 SC 802.
6. Bandhua Mukti Morcha v India, AIR 1984 SC 802.
7. Charles Shobharaj v Supdt. Central Jail, AIR 1978 SC 1514.
8. D.B.M. Patnaik v State of Andra Pradesh, AIR 1974 SC 2092.
9. Daryo v State of Uttar Pradesh, AIR 1961 SC 1457.
10. Fertilizer Corporation of India v Union of India, 1996 SCC (3) 325.
11. Keshavananda Bharathi v State of Kerala, AIR 1973 SC 1461.
12. Keshavananda Bharathi v Union of India, AIR 1973 SC 1461.
13. Kharak Singh v State of Uttar Pradesh, AIR 1963 SC 1295 at 1302.
14. Kochunni v State of Madras, AIR 1959 SC 725.
15. Maneka Gandhi v Union of India, AIR 1978 SC 597.
16. NHRC v State of Arunachal Pradesh, AIR 1996 SC 1234.
17. Pravin Kumar Lal Chand Shah v State, 1982 Cr. LJ 763.
18. Prem Chand Garg v State of Uttar Pradesh, AIR 1963 SC 996.
19. R. C Cooper v Union of India, AIR 1970 SC 564.
20. Ramesbhai Chandubhai Rathod v State of Gujarat, 2009 (5) SCC 74.
21. Romesh Thappar v State of Madras, AIR 1950 SC 124
22. Seethapathi Nageshwara Rao v State of Andra Pradesh, AIR 1978 AP 121.
23. Selvi v State of Karnataka, (2010) 7 SCC 263.
24. Smt. Indira Gandhi v Raj Narain, AIR 1975 SC 2299.
25. State of West Bengal v Ashok Dey, AIR 1972 SC 1660.
26. Subhash Kumar v. State of Bihar, AIR 1991 SC 420.
27. Unnikrishnan v. State of A.P, (1993) 1 SCC 645.

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 INDEX OF AUTHORITIES

28. Waman Rao v Union of India, AIR 1981 SC 271.

FOREIGN DECISIONS

1. Munn v Illinois, 94 U.S. 113 (1877).

ACTS, RULES AND INSTRUCTIONS

1. Code of Criminal Procedure, 1973

2. Constitution of India
3. Supreme Court Rules, 1966
4. Supreme Court Procedure and Practice Information Handbook

REPORTS OF COMMITTEES

1. Report of the National Commission to Review the Working of the Constitution, 2002.

INTERNATIONAL CONVENTIONS.

1. Universal Declaration of Human Rights, 1948.

2. International Covenant on Cultural, Civil and Political Rights, 1966.
3. The European Convention on Human Rights, 1960.
4. American Convention on Human Rights, 1969.
5. African [Banjul] Charter on Human and Peoples' Rights, 1981.

DICTIONARIES

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 INDEX OF AUTHORITIES

1. Black's Law Dictionary, (8th ed. 2004)

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 STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The Petitioners, Association for Protection of Personal Liberties & Ors., hereby submit to
the jurisdiction of the Hon’ble Supreme Court of Royalsthan under Article 32 the
Constitution of Royalsthan. The Hon’ble Court has the jurisdiction to adjudicate the
present case.

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 STATEMENT OF FACTS

STATEMENT OF FACTS

-I-
Royalsthan, a Federal Republic, has a written Constitution identical to India. Due to pluralism
present among its federating units and conflicting interests, isolated upsurgings against the
country were experienced in certain parts. Neighbouring countries, some of which were ‘troubled
states’, engaged in deeds that challenged Royalsthan’s sovereignty. Royalsthan however, always
showed a soft approach to both inside and outside developments, owing to its international
position as a peaceful country and a high degree of constitutional protection to personal freedom.
-II-
However when things went out of control, the Union Government declared national emergency.
All individual rights capable of suspension were suspended. In certain areas, upsurgings were
beyond police control and the defence was given charge. In two such areas, Executive
Magistrates were forced to use excessive powers in order to restore normalcy. The Union
Government simultaneously made amendments to the Constitution. Article 32 was deleted and
an explanation was added to Article 21, stating that the phrase 'procedure established by law'
would take its literal meaning and it should not be read as 'due process of law'.
- III-
Several petitions before High Courts and the Supreme Court challenged the grant of powers to
defence forces, use of excessive powers by Executive Magistrates and Amendments to Articles
32 and 21. The Courts were reluctant to entertain these during the emergency, however after the
emergency was lifted, the petitions resurfaced. Since the procedural rules on filing before the
Supreme Court were not changed in tune with the Amendment, the Court’s Registry accepted
petitions filed by the Association for Protection of Personal Liberties and others. Various High
Courts where similar petitions were filed took a view that since identical matters were already
pending before the Supreme Court they will either wait for the verdict or will permit petitioners
to withdraw the petition and file them before the Apex Court. Certain petitioners took a view that
High Courts should decide the matter because the Apex Court did not have power to entertain
such petitions directly. Accordingly, some High Courts began hearing the matters whereas some
others adjourned them. The present petition filed by the Association for Protection of Personal
Liberties and others is before a 2 judge bench of this Hon’ble Court for adjudication.

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 QUESTIONS PRESENTED

QUESTIONS PRESENTED

1. Whether Article 32 of the Constitution could be deleted by an Amendment and

whether the present writ petition is maintainable before this Hon’ble Court?
1.1. Whether the Amendment deleting Article 32 is constitutional?
1.2. Whether the petition is maintainable?

2. Whether the explanation added to Article 21 of the Constitution by way of an

Amendment is valid?
2.1. Whether Article 21 could be amended to remove the benefit it was intended to
provide?
2.2. Whether Article 21 is part of the ‘basic structure’ of the Constitution?
2.3. Whether literal interpretation of Constitutional provisions is acceptable?

3. Whether the defence forces could have been empowered to take control of the
situation and whether the Executive Magistrates could have exercised power in
excess of their positions?
3.1. Whether the handing over of control of certain areas to the defence forces was
legal?
3.2. Whether the exercise of powers in excess of their position by the Executive
Magistrates is warranted?

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 SUMMARY OF PLEADINGS

SUMMARY OF PLEADINGS

1. The petition under Article 32 of the Constitution of Royalsthan is maintainable and

the Amendment deleting Article 32 is invalid.

The question of maintainability of this petition and the validity of the Amendment deleting
Article 32 of the Constitution of Royalsthan are interdependent and inseparable. It is first
submitted the right to approach the Supreme Court under Article 32 is a fundamental right by
itself and forms part of the basic structure of the Constitution. Hence, it cannot be deleted by way
of an Amendment under Article 368 of the Constitution. Conversely if Article 32 is deleted, then
the other fundamental rights guaranteed under Part III become nugatory and the very purpose of
guaranteeing fundamental rights becomes illusionary. As a direct result of the above amendment
being invalid, it is submitted that the present petition under Article 32 filed before this Hon’ble
Court is maintainable since the petitioner, in the light of public interest, has sufficient locus
standi to approach the Court. Therefore, the petitioner submits that the Amendment deleting
Article 32 must be declared invalid and the present petition must be adjudged maintainable.

2. Adding of explanation to Article 21 of the Constitution by an Amendment is invalid.

The Amendment that added an explanation to Article 21 of the Constitution of Royalsthan to the
effect that “procedure established by law” under the former article would take its literal meaning
and that it should not be read as “due process of law”, is not valid. The reasons being that one,
the Article forms part of the basic structure of the constitution as held in several cases and thus,
is a result of the impliedly restriction placed on the Parliament under Article 368 in so far as the
power of the to amend the constitution under is concerned. Two, the explanation is untenable
since even when read in its literal sense, the phrase “procedure established by law” implies
within itself the same connotations as “due process of law” and incorporates the notions of a just
and fair law. Three, Article 21 is not an isolated provision within Part III of the Constitution but
is inextricably linked to every other article, particularly Articles 14 and 19. Therefore, any law

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 SUMMARY OF PLEADINGS

depriving life or liberty under Article 21 requires passing through the tests of these articles as
well. Hence, it is submitted that the amendment to Article 21, which tries to make it a standalone
provision is not valid.

3. The empowering of defence forces is illegal and the Executive Magistrates’ use of
excessive powers was not warranted.

The Union Government’s decision to empower the defence forces to take control of certain areas
where the police machinery had failed is not justified. There were no circumstances that
warranted the granting of powers to the defence forces, no evidence to show that the situation
was so grave as to declare the places to be under defence control. More importantly, the right to
life and liberty of the people have been deprived arbitrarily and unreasonably, in the absence of
any law.
Further, the use of powers in excess of their positions by the Executive Magistrates is once again
not justified since, as pointed out in the factual matrix, the areas where already under the
command of the defence forces and emergency was already declared to tackle the situation. The
Executive Magistrates are “State” within the meaning of Article 12 of the Constitution and
therefore, violation of fundamental rights in the form of administrative excesses can be claimed
against them. Royalsthan being a country that places great emphasis on individual freedoms in
its Constitutional, recognizing the fact that an emergency strikes at the heart of individual
freedoms has a stricter mandate for permissible State activities during the existence of such
emergency. Therefore it is submitted that the actions of the Executive Magistrates and the control
by the defence forces did not comply with the “procedure established by law” under the Article
21 of the Constitution and thus are invalid.

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 13

PLEADINGS AND AUTHORITIES

I. AMENDMENT DELETING ARTICLE 32 IS ULTRA VIRES & VOID AB INITIO

AND THE PRESENT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION
OF ROYALSTHAN IS MAINTAINABLE .

I.1 The Amendment deleting Article 32 of the Constitution of Royalsthan during the

emergency period is ultra vires and void ab initio.

It is submitted at the outset that the question of maintainability of the petition and the
validity of the amendment deleting Article 32 of the Constitution of Royalsthan are inseparable
and interdependent. The answer to the former question will determine the fate of the latter in one
sense. Hence, the petition seeks to address both questions simultaneously.
First, on the point of deletion of Article 32, the following important submissions are made.
The facts reveal that the Constitution of Royalsthan is identical to that of India and therefore, the
arrangement of Articles, as a corollary must be identical. Part III of the Indian Constitution
guarantees certain fundamental rights to citizens and non-citizens, among which Article 32 may
be found. The rights guaranteed under Part III are in fact enforceable, upon a violation by the
State, in the highest judicial body, this Hon’ble Court, through the mechanism provided under
Article 32. Thus, Article 32 provides for highly cherished rights.1
The facts also reveal that during the pendency of the emergency, Article 32 was deleted by
way of an Amendment to the Constitution. However, it is respectfully submitted that the said
Amendment is ultra vires the Constitution and is void ab inito due to the below mentioned
reasons, which have been borrowed from the Indian Courts’ interpretation on the status and
importance of Article 32:
Firstly, the maxim, ibi jus ubi remedium guarantees that where there is legal right, there
must be a remedy.2 As long as fundamental rights under Part III remain in the Constitution, the

1
Fertilizer Corporation of India v Union of India, 1996 SCC (3) 325.
2
J.D.B. Mitchill, Constitutional Law, 3rd Edition, 1968, p.54.

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 14

absence of Article 32 is not justified, which provides for the only mechanism for enforcement of
the rest of the guaranteed rights through the highest judicial body of the land. More importantly,
since Article 32 appears under Part III of the Constitution, the right to approach the Supreme
Court under Art. 32 is in itself a guaranteed fundamental right.3 Such a right can never be taken
away in toto.
Secondly, borrowing from the Indian jurisprudence on interpreting the scope of
Parliament’s power to amend the constitution, it has been declared that the right under Article 32
forms part of the “Basic Structure of the constitution”. The concept of “basic structure” was first
approved by the Supreme Court of India in Kesavananda Bharati v State of Kerala.4 According
to this view, there are some parts of the constitution, abrogation or alteration of which will
substantially affect the very essence of the Constitution, since these features constitute the
document’s “basic structure.” The reasoning of the court in case of Article 32 is also supported
by the intention of the draftsmen of the Constitution, when the Dr. B.R Ambedkar opined that
Article 32 is the real heart and soul of the Constitution. 5 It is therefore submitted that such a
sacrosanct right cannot be altered or deleted, so as to render the concept of the original
jurisdiction of the court as nugatory.
Thirdly, if the right to approach the Supreme Court for a violation of other fundamental
rights guaranteed under Part III is taken away, the rest of the rights would be rendered
meaningless. It is a sine qua non for the exercise of other rights in Part III.6 Even if it conceded
that approaching the High Court under Article 226 is an option available to the petitioners to
enforce violations of fundamental rights, it must be remembered that this mechanism has several
inherent limitations. The multiplicity of High Courts also makes room for multiplicity of
opinions and on important points of law there might be no consensus at law among them in the
first instance. Finality of opinions in a shorter time frame is also a concern. It is additionally
submitted that the Supreme Court of India itself has never discouraged petitions to itself under
Article 32 where an alternative remedy in the form of Article 226 has not been resorted to 7
because of the importance and urgency involved in several disputes.

3
Bandhua Mukti Morcha v India, AIR 1984 SC 802.
4
AIR 1973 SC 1461.
5
Constituent Assembly Debates, Volume IV, 1948.
6
Prem Chand Garg v State of Uttar Pradesh, AIR 1963 SC 996.
7
Kochunni v State of Madras, AIR 1959 SC 725.

Memorial for the Petitioners

 15

In fact, in India, the National Commission to Review the Working of the Constitution
which was constituted post the 1975 emergency period also suggested in its Report 8 clauses (1)
and (1A) of Article 359 could be amended to include expressly that inter alia Article 32 could
not be suspended during an emergency, which eruditely speaks in volumes about the importance
of Article 32 in guaranteeing fundamental rights. Thus, it is submitted that the Constitution
Royalsthan which accords high levels of personal freedoms to the individual, must retain Article
32 for its survival.
Fourthly, the act of deleting a fundamental right like Article 32 from the constitution
cannot be veiled as a matter of policy which is not justiciable by the courts because the
amendment of the constitution is not on the same footing as legislative function of ordinary law
making.9 The constitution in itself has provided a method by which it can be amended and has
placed several restrictions on the same, unlike amending ordinary legal provisions which the
Parliament is free to undertake without any restrictions. It is humbly submitted that a dilution of
the very essence of the Constitution cannot be excused as prudent policy since it violates the very
core of the Constitution that gets its power from the ultimate sovereign, the people.10
Finally, as held in a plethora of Indian cases, the court is under a duty to preserve the
right under Article 32.11
Thus, in the light of the above, it is respectfully submitted before this Hon’ble Court that
the Amendment deleting Article 32 is ultra vires the Constitution since it goes against the basic
structure of the Constitution and makes the rest of the rights nugatory.

I.2 The petitioner has the required locus standi to invoke the jurisdiction of this Hon’ble

Court and the petition is maintainable.

Locus Standi in Latin refers to a ‘place of standing’ and it is defined as the right to bring an
action or to be heard in a given forum.12
Article 32 of the Constitution guarantees a remedy for the violation of any right that
come under Part III, namely Fundamental Rights. As a logical corollary of the above submissions
on the invalidity of the deletion of Article 32, the said Article cannot be taken out of the

8
Report of National Commission to Review the Working of the Constitution, 2002, available at www.ncrwc.nic.in.
9
Keshavananda Bharathi v State of Kerala, AIR 1973 SC 1461.
10
Babulal Parate vs The State Of Bombay And Anr., AIR 1960 SC 51.
11
Daryo v State of Uttar Pradesh, AIR 1961 SC 1457; Charles Shobharaj v Supdt. Central Jail, AIR 1978 SC 1514.
12
Black's Law Dictionary, (8th ed. 2004) at p. 952.

Memorial for the Petitioners

 16

Constitution. Therefore, it is humbly submitted before this Hon’ble Court that the petitioner in
the instant case, Association for Protection of Personal Liberties (hereinafter referred to as
“APPL”), can approach this Hon’ble forum. APPL has the required locus standi to approach this
Court for relief under Article 32 in light of public interest. The petitioner represents aggrieved
persons across the State of Royalsthan reeling under excesses committed during the emergency
declared in the country.
The Hon’ble Supreme Court of India has through the weapon of Public Interest Litigation
(hereinafter referred to as “PIL”) liberalized the requirement for the locus standi in a particular
case with the sole intention that the most genuine and serious concerns could be addressed which
would benefit the public at large, such cases which would otherwise be difficult to bring up in
the courts due to several other impeding factors. The present case is one such genuine instance of
concern since Amendments to crucial provisions of the Constitution have been carried out,
coupled with excessive executive action.
In the case of Subhash Kumar v. State of Bihar13, the Supreme Court of India held that
“recourse to proceeding under Article 32 of the Constitution should be taken person genuinely
interested in the protection of society on behalf of the community”. Also, in case of the
jurisdiction of this Hon’ble Court to entertain or allow the hearing of the present case, it has been
established by this very court in the case of Romesh Thoppar v. State of Madras 14 that an
application under Article 32 lies in the first instance to the Supreme Court, without first resorting
to the High Court under Article 226.
Remedial nature of PIL is indirectly incorporated the principles enshrined in the part IV of
the Constitution of India into part III of the Constitution. By riding the aspirations of part IV into
part III, the Constitution had changed the procedural nature of the Indian law into dynamic
welfare one. Bandhu Mukti Morcha v. Union of India15, Unnikrishnan v. State of A.P.16, etc were
the obvious examples of this change in nature of judiciary.
Lastly and more importantly, the respondent cannot claim that once Article 32 has been
deleted, an individual cannot approach the court under the same article for questioning its
deletion. A parallel may be drawn to support this argument. In the Indira Gandhi v Raj Narain

13
AIR 1991 SC 420.
14
AIR 1950 SC 124.
15
AIR 1984 SC 802.
16
(1993) 1 SCC 645.

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 17

case17, the petitioner had questioned the validity of an amendment that inserted a provision in the
constitution that said that the election of the prime minister cannot be challenged in a court of
law, whereas the petitioner was before the Apex Court to challenge the very same election.
Despite an express bar on the court to entertain the petition as inserted by the amendment, the
court admitted the matter and adjudicated on its merits, negating such an amendment. Similar is
the situation in this case where, in the light of grave public interest, a remedy is sought to
negative the deletion of 32 when the provision has been abrogated.
Further, it is submitted that there is a difference when the petitioner petitions a court to
decide the validity of a certain law which deletes and article and if the same petition is for the
enforcement of right under a certain provision that is non-existent. The former is maintainable,
while the latter may not be in all cases.
Hence, it is humbly submitted that this petition is maintainable and the petitioner has the
requisite locus standi to approach this Hon’ble forum.

II. AMENDMENT ADDING EXPLANATION TO ARTICLE 21 IS ULTRA VIRES THE

CONSTITUTION AND VOID AB INITIO.

II.1 The amendment adding an explanation to Article 21 has abrogated the

provision in effect.

Article 21 protects the life and liberty of an individual by providing that no person shall be
deprived of his life or personal liberty except according to procedure established by law. 18 It is
submitted that a substantial amendment of such an important right cannot stand the test of
applicable law and the reasons for the same are enumerated as under:

II.1.1 The phrase “procedure established by law” cannot be read down in its literal
meaning in order to deny benefit of the provision and inherently includes the
components of the due process clause.

17
Smt. Indira Gandhi v Raj Narain, AIR 1975 SC 2299.
18
Pravin Kumar Lal Chand Shah v State, 1982 Cr. LJ 763.

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 18

The phrase “due process of law” has been borrowed for the purpose of usage from the V
Amendment to the American Constitution wherein the phrase was inserted. However, the
Royalsthan Constitution is akin to that of the Indian Constitution that does not expressly use the
due process clause. Instead Article 21 of the Royalsthan Constitution guarantees right to life and
personal liberty which can be deprived only through “procedure established by law”. In the
instant case, an amendment has added an explanation which compels one to read down the
phrase in its literal sense and also states that the connotations of the due process clause are
inapplicable to the said Article. It is submitted that the said amendment is not tenable law as is
substantiated below.
The initial interpretation given to the phrase “procedure established by law” is akin to the
effect the new amendment has sought to create. At this juncture it is pertinent to note that such an
interpretation in India has been long discarded. If in A.K Gopalan v State of Madras19 the
Supreme Court of India held that “law” under Article 21 was to be interpreted as “lex”, this view
was discarded by a larger bench in Maneka Gandhi v Union of India20 where it was replaced by
“jus”. This denotes both procedural and substantial due process, thereby discarding the ‘high
water mark of legal positivism’ that was witnessed in Gopalan.
Further, it is submitted that no longer is Article 21 or any other article under Part III read
in isolation by the Indian courts. The theory of mutual exclusivity was discarded in the Bank
Nationalization case.21 Similarly in another significant case 22, the court read Articles 19, 21 and
22 together and applied the restrictions under one to another. This view was in keeping with the
dictum pronounced by Krishna Iyer J. in Maneka Gandhi that “no fundamental right is an island
by itself”. Additionally, the Supreme Court of the United States held that life does not mean mere
animal existence and includes within it dignity and liberty.23
More recently the Apex Court in India held that “justice, fairness and reasonableness”
constitute the essence of guarantee of life and liberty. 24 Finally, in Selvi v State of Karnataka25
has asserted that substantive due process is a ‘guarantee’ under the Indian Constitution.

19
AIR 1950 SC 27.
20
AIR 1978 SC 597.
21
R. C Cooper v Union of India, AIR 1970 SC 564.
22
State of West Bengal v Ashok Dey, AIR 1972 SC 1660.
23
Munn v Illinois, 94 U.S. 113 (1877).
24
Ramesbhai Chandubhai Rathod v State of Gujarat, 2009 (5) SCC 74.
25
(2010) 7 SCC 263.

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 19

As illustrated above, in order to effectively ensure that no person suffers on account of an

unjust law, more so in the absence of a ground to challenge an unjust law and not executive
action alone, the Indian courts have thought it prudent to include the prerequisites of fairness and
justice as a test that every law needs to pass, irrespective of actual words used in the article.
Therefore, in the view of the above authorities and pleadings, it is submitted that the
present attempt to amend the basic character of the right to life as understood in the present day
welfare state, is ultra vires the constitution and is void ab initio.

II.1.2 Article 21 is part of the basic structure of the Constitution and cannot be
abrogated so as to lose its essential characteristic.

As has been proved from the above submissions, the present amendment to Article 21
destroys its’ essence and nullifies the benefit that the Constitution guarantees to a person on the
deprivation of his life or liberty unlawfully by the State. It is also submitted here that decisions,
in the Indian context, while interpreting Article 21 and the rights flowing from it, the Court has
held that the Article forms part of the basic structure of the Constitution.26
As regards the importance of the right to life and liberty, life and liberty are held as
absolutely sacred27 and are recognized by several international covenants which lay special
emphasis on the subject. Human rights in all United Nations and Regional Conventions including
the Universal Declaration of Human Rights, 194828, International Covenant on Civil and Political
Rights, 196629, European Convention on Human Rights, 196030, American Convention on
Human Rights, 1969,31 and the African [Banjul] Charter on Human and Peoples' Rights, 1982 32
only permits States to derogate from responsibilities in respect of a life and liberty only in
circumstances warranted by law.

26
Waman Rao v Union of India, AIR 1981 SC 271.
27
Constituent Assembly Debates, Volume 1, 1948.
28
Article 3, Universal Declaration of Human Rights, 1948.
29
Article 4, International Covenant on Civil and Political Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No.
16) at 52.
30
Article 2, The European Convention on Human Rights, 1960.
31
Article 4, American Convention on Human Rights, 1969.
32
Article 4, African [Banjul] Charter on Human and Peoples' Rights, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58
(1982)

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The logical conclusion of both these propositions is that once it is accepted that Article 21
is part of the basic structure of the Constitution, then there is no justification for amending such a
provision in as much as it alters the utility or objective behind its existence.

II.1.3 Literal interpretation not to be adopted in case of Constitutional guarantees.

Literal interpretation as a general principle is used in circumstances meant to limit the

powers, benefits or obligations under a particular provision or statute, particularly while
interpreting fiscal or penal statutes.33 The Constitution, in particular Part III, being a document
that gets its rights from the people and allows them to retain certain crucial rights such as the
right to life, must be interpreted liberally, in order to further the benefit it seeks to confer.
Interpretation of Article 21 in the Indian context has undergone a sea change after the
decision in A.K Gopalan v State of Madras.34 While Gopalan’s case read down the phrase
“procedure established by law” in its literal sense and rejected the submission that
“reasonableness” must be read into Article 21, this view was subsequently changed to answer to
the needs of justice evolving with time. As elucidated in the above submissions, with the
decision in Maneka Gandhi35, the view was discarded and a liberal approach was taken, reading
in the components of the due process into procedure established by law. Thus, it is respectfully
submitted that the present amendment must be declared bad in law since it disregards recognized
principles of statutory interpretation and denies the objective of Article in its true spirit and
essence from materializing.

Thus, it is humbly submitted in light of the above that the amendment to Article 21 must
be declared void and ultra vires the Constitution of Royalsthan.

III. THE GRANT OF POWERS TO DEFENCE FORCES AND EXERCISE OF

POWERS EXCESSIVE OF THEIR POSITIONS BY THE EXECUTIVE
MAGISTRATES IS ILLEGAL.

33
A.S. Sulochana v C. Dharmalingam, AIR 1987 SC 242.
34
Supra n 18.
35
Supra n 19.

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At the outset, it is submitted that the question of the exercise of powers by the defence
forces and excessive power by the Executive Magistrate’s is inextricably related. In the light of
the previous submission, it is clear that Article 21 being a part of the basic structure doctrine
cannot be abrogated to exclude its objective. As a logical corollary, the abuse of power by the
Executive Magistrates and control by the defence forces is against the due process present in
effect as a guarantee in Article 21.

III.1 The grant of power to the defence forces is not justified.

The decision of the Union Government to hand over control of certain areas to the
defence forces is not justified. The reason behind this submission is simple in so far as the facts
are silent under which legislation, order or ordinance the said decision was made. The said
decision is fallible on the sole ground that it was not properly evaluated i.e. it was not reasonable
or just as required by Article 21 in order to deprive people of their life or liberties. Such a
decision of grave importance cannot be arbitrary and solely based on the discretion of the
Government in power.
In arguendo, even if it assumed but not conceded that the amendment to Article 21 is
valid and that the components of reasonableness and fairness, tenets of the due process clause,
are not to be read into article 21, even then, the said decision is illegal. This is because even as
the provision stands as currently amended, there must be some “law” as defined under Article 13
(1) of the Constitution to deprive a person of his or her liberty, which is wholly absent in the
present case.
Therefore, it is submitted that the grant of control of areas to defence forces was arbitrary
and illegal.

III.2 The exercise of powers exceeding their positions by Executive Magistrates is

not justified.

It is the case of the petitioner that the exercise of powers in excess of their position by the
Executive Magistrate is not justified. The facts of the case suggest clearly that the areas in which

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the concerned Magistrates acted were already under the control of the defence forces. It is
submitted that such action on part of the Magistrates is a gross violation of Article 21 which, as
submitted above, requires that the life and liberty of a person can only be deprived by the
procedure established by law. As substantiated above, the amendment to Article 21 to read it
literally is void and thus, the components of due process must still be read into the Article. As a
logical corollary, the action of the Magistrates was not warranted. They did not act in accordance
with any law and their actions were not reasonable and just.
At this juncture, it is submitted that the Executive Magistrates are “State” within the
meaning of Article 12 of the Constitution and rights under Part III can be enforced against them.
The Supreme Court of India on various occasions has upheld this position and has contained the
excesses of such class of persons.36
As regards the consequences of the action of the Magistrates, it is submitted that Article
21 stands grossly violated, seriously compromising the rights of the people. Article 21 of the
Constitution is undoubtedly significant for it secures to all natural persons 37 including
foreigners38 two rights- right to life and right to personal liberty by prohibiting the deprivation of
these rights except according to procedure established by law. Personal liberty is a compendious
term to include within itself all the varieties of rights make up the personal liberty other than
those dealt with in the several clauses of Article 19 (1), Article 21 takes in and comprises the
residue.39 The deprivation of the rights under Article 21 shall be unauthorized unless there is a
fair, just and reasonable procedure5 prescribed by a valid statute. No executive fiat would do.40

Thus, by acting in excess of the law, the Magistrates have shown disregard to the
Constitutional provisions, have flouted the law and hence their actions are illegal.

CONCLUSION & PRAYER

36
A D M Jabalpur v Shivakant Shukla, AIR 1976 SC 1207.
37
Seethapathi Nageshwara Rao v State of Andra Pradesh, AIR 1978 AP 121.
38
NHRC v State of Arunachal Pradesh, AIR 1996 SC 1234.
39
Kharak Singh v State of Uttar Pradesh, AIR 1963 SC 1295 at 1302.
40
D.B.M. Patnaik v State of Andra Pradesh, AIR 1974 SC 2092.

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Wherefore, in the light of the facts of the case, arguments advanced and authorities cited, it
is submitted that the Hon’ble Supreme Court of Royalsthan may be pleased to adjudge and
declare that:

1) The present writ petition under Article 32 is maintainable.

2) The amendment deleting Article 32 of the Constitution is ultra vires and is void ab initio.
3) The amendment adding an explanation to Article 21 of the Constitution is ultra vires and is
void ab initio.
4) The handing of power to the defence forces to control certain areas and the exercise of
powers in excess of their positions are illegal.

And pass any other order which the court may deem fit in the ends of equity, justice,
expediency and good conscience in favour of the petitioner. All of which is respectfully
submitted

Place: S/d_________________

Date: (Counsel for Petitioner)

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