Team No.

009

IN THE HON’BLE SUPREME COURT OF FINIA

Writ Petition

Miss Farhana v. People’s Republic of Finia

MEMORIAL FOR RESPONDENT

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 TABLE OF CONTENT

INDEX OF AUTHORITIES………………………………………………………..

STTEMENT OF JURISDICTION…………………………………………………..

STATEMENT OF FACTS………………………………………………………….

ISSUES RAISED…………………………………………………………………..

SUMMARY OF ARGUMMENT…………………………………………………...

ARGUMENTS ADVANCED…………………………………………………….

I. THE PETITION IS NOT MAINTAINABLE

II. THERE WAS NO VIOLATION OF PROVISIONS OF ARTICLE 21
OF THE CONSTITUION OF FINIA R/W CEDAW
III. GOVT. OF FINIA COULD NOT BE HELD VICARIOUSLY
LIABLEN FOR THEACTS OF THE POLICE OFFICERS
IV. THE PETITIONER IS NOT ENTITLED TO MONETORY
COMPENSATION

PRAYER…………………………………………………………………………

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 INDEX OF AUTHORITIES

CASE LAWS
Anand Swaroop Verma and Sherab Shenga v. UOI and Anr, 100 (2002) DLT 78

State of Arunachal Pradesh v. Khudiram Chakma, 1994 Supp (1) SCC 615

Kasturilal Raila Ram v. State of Uttar Pradesh, AIR 1965 SC 1039

N Nagendra Rao v. State of A.P, (1994) 6 SCC 205

Feldman (Pty) Ltd v. Mall, 1945 AD 733

Jacobi v. Griffiths, (1999) 174 DLR (4 th ) 71

Minister of Police v. Rabie, 1986 (1) SA 117 (A)

Secretary of State v. Cockroft, AIR 1915 Mad 993; ILR 39 Mad. 35

Chairman of Railway Board v. Chandrima Das (Mrs) and Others, (2000) 2 SCC 465

State of Rajasthan v. Mst. And Another, 1962 AIR 933

Babu Khan v. State of Rajasthan, AIR 1997 SC 2980

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 STATEMENT OF JURISDICTION

The Respondent has the Honour to submit before the Hon’ble Supreme Court of India the

memorandum for the Respondent in the case of Miss Farhana v. People’s Republic of Finia.

As no fundamental right of the Petitioner is violated, therefore this writ petition is not

maintainable under Article 32 of the Indian Constitution, and hence liable to be dismissed.

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 STATEMENT OF FACTS
1. Miss Farhana Khan is a very famous film actress. She resides in ‘Sinia’, which is a Theocratic
[Muslim] state and located at the western border of Peoples Republic of Finia, which is a secular
country. Farhana happened to come to Finia in connection with the shooting of a film. She was
residing in a five star hotel. On a fateful midnight of 5th December 2004, at about 1 a.m. she
encountered a mishap. She walked out of her room to have a cup of coffee in the coffee shop of
the Hotel. There she met 3-4 policemen who were in uniform and started chatting with them.

2. After finishing the coffee, they walked out of the shop and went to the parking area because
Farhana wanted to smoke a cigarette. As she was smoking, she continued her conversation with
the policemen. They suggested going for a drive to a nearby sea beach, which is a very popular
spot. Initially she hesitated but ultimately she got into the car. While they were driving the
policemen kept Farhana engaged in conversation.

3. However, after some time, she became suspicious about the direction and started resisting the
policemen. Upon this, two policemen grabbed her and tied her mouth with the chunari and
threatened her with dire consequences in case she made any noise.

4. Even as she was resisting they drove for another ten to fifteen minutes and the vehicle stopped
at an isolated place. Thereafter, the policemen took off her clothes and raped her one by one.
Then they put some of the clothes back on her body, tied her hands to a tree with a rope and went
away.

5. After some time, Farhana became aware of whole thing and in a state of hysteria started
yelling for help. Her scream awakened people residing nearby and they ultimately untied her.
Next day, the whole episode became big news. An investigation was initiated on filing of the FIR
by her against the police officers.

6. Upon the medical examination of Miss Farhana, it was confirmed that she was gang raped. On
the basis of her description of the rapists, police prepared the sketches of the culprits and the
same were televised on all the popular news channels of Finia. After a rigorous manhunt for 72
hours, police ultimately were able to nab the culprits.

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7. Upon the identification parade, Farhana identified them. During the investigation, it also
became clear that, the culprits were posted on duty in the hotel for providing security to the VIPs
and had finished their duty hours around 15 minutes prior to meeting Miss Farhana in the coffee
shop of the hotel. Soon, Government of Finia, constituted a special court, which tried these
policemen and having found them guilty of gang rape, sentenced them for life imprisonment.
Their appeals to High Court and Supreme Court were also dismissed

8. Farhana has filed a writ petition under Article 32 of Constitution of Finia for recovering
damages for legal injuries caused to her, by arguing inter alia that her brutal gang rape by
policemen has resulted in the gross violation of her rights to life, dignity, bodily integrity and
modesty. She contends that the said rights are guaranteed to her by Article 21 of Constitution of
Finia read with relevant provisions of Convention on Elimination of All forms of Discrimination
Against Women [CEDAW}, even if she is a foreigner. She also contends that Government of
Finia has to be held vicariously liable under Constitutional law and Tort law in the light of
Articles 32 and 300 of Constitution of Finia for having failed in its duty to provide secured and
safe life to foreigners like her. She therefore wants to claim monetary compensation of Rs 100
crores as exemplary damages towards legal injuries caused to her owing to violations of her
basic human rights and fundamental freedoms. She also places reliance on relevant Law
Commission reports to buttress her claim.

9. On the other hand, Government of Finia by way of counter inter alia contends that writ
petition under article 32 of Constitution of Finia is not maintainable for recovering monetary
compensation. It further contends that offences were committed by the policemen in their private
capacity and for the same State cannot be held vicariously liable. It is also argued in the light of
relevant provision of Finian Evidence Act that a judgment rendered by criminal court cannot be
relied upon as a conclusive proof of either violations of fundamental rights underConstitution of
Finia or civil wrong under Tort laws so as to claim monetary compensation. Government further
contends that, it has already brought to justice the culprits and the same is adequate redressal to
the violations of her rights. It also contends that, it has expressly entered reservations to relevant
provisions of International convention on civil and political rights [ICCPR] with regard to
remedy of compensation for violation of Civil and Political Rights.

10. The matter is listed for hearing.

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ISSUES:
1. Whether the writ petition filed by the petitioner maintainable?
2. Whether there was violation of provisions of Article 21 of the constitution of Finia r/w
CEDAW?
3. Whether govt. of Finia can be held vicariously liable for the acts of the police officers?
4. Whether the petitioner is entitled for a monetary compensation?

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 SUMMARY ARGUMENTS

1. The Government of Finia contends that the petition is not

maintainable under Article 32 of the Constitution of Finia in terms of
recovering monetary compensation. And also as the incident took
place in the private capacity of the policemen, was not the committed
during the duty hours.
2. There is no violation of the provisions in the Article 21 of the
constitution with respect to Convention on Elimination of All Forms
of Discrimination Against Women (CEDAW). Miss Farhana was not
the national of Finia and the constitution of Finia does not Gurantee
fundamental rights to a ’non-citizen’ or ‘alien’ with reference to Part
II of the constitution which talks about ‘citizenship’ and also the govt
have given the culprits the punishment of life imprisonment now there
is no need of compensation as the justice is done.
3. The Central Government cannot be held vicariously liable for the
offence of rape committed by the police officers. It was contended
that the liability under the law of torts would arise only if the act
complained of was performed in the course of official duty and since
rape cannot be said to be an official act, the Central Government
could not be held liable even under the law of torts and it was done in
the private capacity of the officers.
4. The State would not be held liable to pay compensation to Miss
Farhana who was a foreigner and was not of a Finian nationality. It
also contended that the commission of the offence by the police
officers concerned would not make the Central Government liable to
pay compensation to the victim of the offence. It is contended that
since it was the individual act of those persons, they alone would be
prosecuted and on being found guilty and may also be held liable to
pay fine or compensation, but having regard to the facts of this case
the Central Government would not be held vicariously liable.
Therefore, no compensation would be legally awarded by the Court in
a proceeding under Article 226 of the Constitution of Finia.

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 ARGUMENTS ADVANCED

I. THE PETITION IS NOT MAINTAINABLE

The respondent humbly submits that the petition is not maintainable. This submission is
two fold. First with reference to the Chairman of railway board & Ors v. Mrs Chandrima
Das & Ors Case that the Mrs Chandrima1 was a foreign national and therefore, no relief
could be granted to her under public law as there was no mere violation of the
fundamental right under the constitution.

Alomg with this, the brutual offence of rape was committed by the police officer in their
private capacity and for the same reason the central govt cannot be held be liable.

II.

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Reailway board v.Chandrima das, (2000) 2 SCC 465