MAIMS 3RD NATIONAL MOOT COURT COMPETITION, 2022

TEAM CODE- 04

2nd DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT COURT

COMPETITION,2024

BEFORE THE HON’BLE SUPREME COURT OF HINDIA

WRIT PETITION NO………..2021

(UNDER ART. 32 OF THE CONSTITUTION OF HIMAL)
MR. BLOOM……..……………………………………………….…………..PETITIONER

VS.

UNION OF HIMAL………………………….……………….……………..RESPONDENT

CLUBBED WITH
PUBLIC INTEREST LITIGATION NO………2021
MR. WATERMAN……….…………………………………………………..PETITIONER

VS.

UNION OF HIMAL……………………………………………..…………..RESPONDENT

CLUBBED WITH
WRIT PETITION NO………..2022
VICTIM X…………………………………………...…….……….………….PETITIONER

VS.

STATE OF ARYA…………………………………………….....………….RESPONDENT

UPON SUBMISSION TO THE HON’BLE CHIEF JUSTICE OF HINDIA AND HIS

COMPANION JUSTICES OF THE SUPREME COURT OF HINDIA

MEMORIAL ON BEHALF OF PETITIONER

 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

TABLE OF CONTENTS

LIST OF ABBREVIATIONS...............................................................................................III

TABLE OF AUTHORITIES................................................................................................IV

STATEMENT OF FACTS.....................................................................................................V

STATEMENT OF JURISDICTION....................................................................................VI

ISSUED RAISED.................................................................................................................VII

SUMMARY OF ARGUMENTS.......................................................................................VIII

ARGUMENTS ADVANCED..................................................................................................1

1) WHETHER THE DOCTRINE OF REVERSE BURDEN IS

CONSTITUTIONALLY VALID UNDER SEXUAL OFFENCES AGAINST
CHILDREN ACT?...................................................................................................................1

1.1 That reverse burden of proof is not in line with the basic principle of innocence of
criminal jurisprudence.........................................................................................................1

1.2 That every accused has an inbuilt right to be dealt fairly in a criminal trial...........3

1.2.1 That reverse burden of proof is an attempt to trample upon the Fundamental
Rights of the accused.........................................................................................................4

1.3 Mere charge under the statute not enough for the reverse burden to apply............7

2) WHETHER THE ACCUSED MR. BLOOM HAVE A RIGHT TO PRIVACY AND

MORE SPECIFICALLY RIGHT TO BE FORGOTTEN WITH RESPECT TO THE
CRIMINAL IDENTIFICATION ACT, 2022......................................................................10

2.1 That the principle of presumption of innocence is a golden thread of criminal

law……................................................................................................................................10

2.1.1. That accused have right to privacy which is a facet of right to life under art. 21 of
the constitution.................................................................................................................10

2.2 That Right to be forgotten falls under the scope of an individual’s Right to
privacy, which is a fundamental right under Art. 21 of the Constitution.....................12

MEMORIAL ON BEHALF OF PETITIONER

I
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

3) WHETHER MR. SARVESH SHOULD BE HELD GUILTY OF A VIOLATION

OF THE REPRESENTATION OF PEOPLE ACT, 1951 FOR SUPPORTING THE
VICTIM?................................................................................................................................16

3.1 That support given by Mr. Sarvesh to victim with malicious intent to lure them
constitute corrupt practice under RPI Act, 1951............................................................16

3.2 That financial support to the victim by the MLA does not fall under the
permissible works of local area development scheme.....................................................18

3.2.1 List of Non permissible works................................................................................18

4) WHETHER THE VICTIM HAS A RIGHT TO PRIVACY? WHETHER THE

VICTIM IS ENTITLED TO COMPENSATION CONSIDERING BREACH IF
ADMITTED?..........................................................................................................................19

4.1 That identity of POCSO victim which is prone to disclosure must be kept
confidential to protect his/her right to privacy................................................................19

4.1.1 That there are laws-cum-guidelines of the courts which presses about the
confidentiality of the identity of the victim......................................................................20

4.2 That the liability for wrongful actions of a person holding constitutional office is
not same as actions of an ordinary citizen........................................................................22

4.2.1 Duty is more than ordinary citizen.........................................................................22

4.2.2 SC order for special court for MP/MLA................................................................23

4.2.3 That constitution bestowed special privileges to members which put them on
different pedestal as compare to ordinary citizen...........................................................23

4.3 That Victim is entitled to compensation owing to breach of her right to

privacy………….................................................................................................................24

PRAYER.................................................................................................................................25

MEMORIAL ON BEHALF OF PETITIONER

II
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

LIST OF ABBREVIATIONS

S NO. ABBREVIATION DESCRIPTION

1. GOVT. Government

2. HON`BLE Honourable

3. U/A Under Article

4. FIR First Information Report

5. Sec. Section

6. V. Versus

7. AIR All India Report

8. SC Supreme court

9. SCC Supreme court Cases

10. ORS. Others

11. NO. Number

12. R/W Read with

13. ART. Article

14. POCSO The protection of children from sexual

offences

MEMORIAL ON BEHALF OF PETITIONER

III
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

15. Info. Information

TABLE OF AUTHORITIES

CASES

1. A.K. Gopalanv.The State of Madras, AIR 1950 SC 27-------------------------------------6

2. Ashwini Kumar Upadhyay v. Union of India, WP (C) No 699 of 2016----------------23
3. Aycaguer v. France [2017] ECHR 587 [44].-------------------------------------------------14
4. Bhupinder Sharma vs State Of Himachal Pradesh, 2003 Supp (4) SCR 792---------22
5. Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490----------------------19
6. Chambers v. Florida, 309 U.S. 227, (1940)----------------------------------------------------6
7. David vs. state of kerela, CRL.A.NO.419 OF 2019---------------------------------------7, 8
8. Dharamraj Bhanushankar Dave v. State of Gujarat & Ors, 2015 SCC OnLine Guj
2019--------------------------------------------------------------------------------------------------12
9. Directorate of Revenue and Anr.v.Mohammed Nisar, (2008) 2 SCC 37----------------4
10. District Registrar ad Collector v. Canara Bank, (2005) 1 SCC 496----------------------7
11. Gaughran v. United Kingdom 45245/15-----------------------------------------------------14
12. Hagar v. Reclamation Dist., 111 U.S. 701, (1884);-------------------------------------------6
13. Jeeshan @ jaanu and Anr. Vs. state of U.P. and others, CRIMINAL MISC. WRIT
PETITION NO. – 10974 OF 2020,------------------------------------------------------------11
14. Jorawar Singh Mundy vs. Union of India (W.P. (C) 3918/ 2020------------------------12
15. Kali Ram v. State of H.P, (1973) 2 SCC 808--------------------------------------------------3
16. Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), [(2007) 2 SCC 258---------------3
17. Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123---------------------------4
18. KS Puttaswamy v. Union of India (2017) 10 SCC 1 [17, 29, 221].----------------------11
19. Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981SC 873---------------------------5
20. Leary v. United States, 395 U.S. 6, (1960).----------------------------------------------------6
21. M.P. Sharma v. Satish Chandra, AIR 1954 SC 300-----------------------------------------6
22. M/s Seema Silk and Sarees v. Directorate of Enforcement, (2008) 5 SCC 580--------5
23. Maneka Gandhi v. Union of India, AIR 1978 SC 1675-------------------------------------6
24. Mario Costeja Gonzalez vs. Google Spain, 2014-------------------------------------------12
25. Megh Singh v. State of Maharashtra, AIR 1964 SC 575-----------------------------------5
MEMORIAL ON BEHALF OF PETITIONER
IV
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

26. Mohd Nayyar Azam Vs. State of Chhattisgarh, (2012) 8 SCC 1------------------------11
27. Nipun Saxena & Anr. vs. Union of India & Anr, 2018 SCC OnLine SC 2772-------20
28. Noor Aga v. State of Punjab and Ors.(2008) 2 SCC 37-------------------------------------4
29. Noor Aga v. State of Punjab, (2008) 16 SCC 417--------------------------------------------7
30. P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56 (63).--------------------6
31. Radheyshyam v. State of Rajasthan, (2014) 5 SCC 389------------------------------------5
32. Rajesh Ranjan Yadav @ Pappu Yadav v. CBI, (2007) 1 SCC 70------------------------4
33. Rattiram v. State of Madhya Pradesh, AIR 2012 SC 1485(1495)------------------------6
34. Rout vs. State of Orissa, 2020 SCC OnLine Ori 878--------------------------------------13
35. Rudul Shah v. State of Bihar, AIR 1983 SC 1086------------------------------------------24
36. S and Marper v. United Kingdom 2008 ECHR 1581--------------------------------------13
37. S v. Dlamini, 1999 (4) SA 623 (S. Afr.).--------------------------------------------------------4
38. S. Subramaniam Balaji v. State of Tamil Nadu, (2013) 9 SCC 659---------------------17
39. Sachin Kakde v. State of Maharashtra, 2016 All.M.R. Cri. 4049------------------------7
40. Sri Joubansen Tripura vs. The State of Tripura, CRL. A.(J) 30 of 2018---------------8
41. State of Kerala Vs. K. Ajith and Others, LL 2021 SC 328-------------------------------23
42. State of Tamil Nadu v. A. Vaidyanatha Iyer, AIR 1958 SC 61---------------------------3
43. Sube Singh v. State of Haryana, AIR 2006 SC 1117---------------------------------------24
44. Sunil Batra v. Delhi Administration, AIR 1978 SC 1675-----------------------------------6
45. Woolmington v. DPP, (1935) AII (ERI)-------------------------------------------------------2
46. Zahid Mukhtar v. State of Maharashtra, AIR 2017 Bom 140----------------------------5
47. Zahira Habibullah Sheikh and ors v. State of Gujarat and ors, (2004) 4 SCC 15----3

LEGAL DATABASE
I. www.scconline.com
II. www.manupatra.com
III. www.legalquest.com
IV. www.legalmatch.com
V. www.lawoctopus.com
VI. www.finologylegal.com

BOOKS, ART.S AND LEGISLATIONS

MEMORIAL ON BEHALF OF PETITIONER

V
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

I. Ratan Lal and Dheeraj Lal (eds.), The Indian Penal Code, (Re print, 30th edition,
2006).
II. K.D Gaur (ed.), Indian Penal Code, (Universal Law Publications Co., New Delhi,
Fifth Edition).
III. Mahesh Prasad Tandon’s (ed.), The Indian Penal Code, (Allahabad Law Agency,
Faridabad, 23rd Edition, 2005)
IV. Surya Narayan Misra (ed.), The Indian Penal Code (Act No. 45 of 1860), (Law
Publications, Allahabad, Nineteenth Edition).
V. D.D Basu Commentary (ed.), The Constitution of India, (Lexis Nexis Butterworth
Wadhwa Publications, Nagpur, 8th ed. 2008).
VI. H.M. Seervai (ed.), Constitutional Law of India, (Universal Law Publishing, New
Delhi, 4th ed. 2010).
VII. Batuk Lal (ed.), The Law of Evidence, (Central Law Agency, Allahabad, 2018).

STATUTES
I. The Indian penal Code,1860 (Act 45 of 1860), ss. 171
II. The Indian Evidence Act, 1872 (Act 1 of 1872).
III. Criminal identification Act, 2022
IV. POCSO Act, 2012
V. Representation of people Act, 1951

DICTIONARY CONSULTED
I. Bryan A. Garner, ‘Black’s Law Dictionary’, 9th Ed., 2009, West Group.
II. Greenberg Daniel, ‘Strouds Judicial Dictionary of Words and Phrases’, 7th Ed. Sweet
and Maxwell Co.

MEMORIAL ON BEHALF OF PETITIONER

VI
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

STATEMENT OF FACTS

STATEMENT OF JURISDICTION
Petitioner No. 1

Mr. bloom approached the hon’ble S.C under art. 321 of the constitution of Himal.

Petitioner No. 2

Mr. Sarvesh approached the hon’ble S.C under art. 32 of the constitution of Himal.

Petitioner No. 3

Victim X approached the hon’ble S.C under art. 32 of the constitution of Himal.

1
Remedies for enforcement of rights conferred by this Part

(1) The right to move the S.C by appropriate proceedings for the enforcement of the rights conferred by
this Part is guaranteed
(2) The S.C 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

MEMORIAL ON BEHALF OF PETITIONER

VII
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

ISSUED RAISED
1) WHETHER THE DOCTRINE OF REVERSE BURDEN IS
CONSTITUTIONALLY VALID UNDER SEXUAL OFFENCES AGAINST
CHILDREN ACT?

2) WHETHER THE ACCUSED MR. BLOOM HAVE A RIGHT TO PRIVACY AND

MORE SPECIFICALLY RIGHT TO BE FORGOTTEN WITH RESPECT TO
THE CRIMINAL IDENTIFICATION ACT, 2022?

3) WHETHER MR. SARVESH SHOULD BE HELD GUILTY OF A VIOLATION

OF THE REPRESENTATION OF PEOPLES ACT, 1951 FOR SUPPOTING THE
VICTIM?

4) WHETHER THE VICTIM HAS A RIGHT TO PRIVACY? WHETHER THE

VICTIM IS ENTITLED TO COMPENSATION CONSIDERING BREACH IF
ADMITTED?

MEMORIAL ON BEHALF OF PETITIONER

VIII
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

SUMMARY OF ARGUMENTS
1. WHETHER THE DOCTRINE OF REVERSE BURDEN IS
CONSTITUTIONALLY VALID UNDER SEXUAL OFFENCES AGAINST
CHILDREN ACT?

It is humbly submitted that before this hon’ble court that doctrine of reverse burden of proof
is unconstitutional owing to it is in stark contrast with the principle of presumption of
innocence and right to have fair trial.

2. WHETHER THE ACCUSED MR. BLOOM HAVE A RIGHT TO PRIVACY AND

MORE SPECIFICALLY RIGHT TO BE FORGOTTEN WITH RESPECT TO
THE CRIMINAL IDENTIFICATION ACT, 2022?

It is humbly submitted before this hon’ble court that accused have right to privacy and right
to be forgotten considering how false accusation could ruin a person's life, false accusation
sometimes destroys the entire life of an innocent person It does not only destroy an
individual's life but creates a social stigma to the family members too.

3. WHETHER MR. SARVESH SHOULD BE HELD GUILTY OF A VIOLATION

OF THE REPRESENTATION OF PEOPLES ACT, 1951 FOR SUPPOTING THE
VICTIM?

It is humbly submitted before this hon’ble court that Mr. Sarvesh should be held guilty under
RPI Act, 1951 for bribing and luring the voters by paying the victim in the name of support.

4. WHETHER THE VICTIM HAS A RIGHT TO PRIVACY? WHETHER THE

VICTIM IS ENTITLED TO COMPENSATION CONSIDERING BREACH IF
ADMITTED?

It is humbly submitted before this hon’ble court that victim has right to privacy with respect
to disclosure of her identity and therefore, entitled to compensation for the violation of her
fundamental right.

MEMORIAL ON BEHALF OF PETITIONER

IX
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

ARGUMENTS ADVANCED
1) WHETHER THE DOCTRINE OF REVERSE BURDEN IS
CONSTITUTIONALLY VALID UNDER SEXUAL OFFENCES AGAINST
CHILDREN ACT?

It is humbly submitted before this Hon’ble court that the provision of reverse burden in SOC
Act goes against the one of the basic principles of Indian criminal jurisprudence which states
that a person remains innocent until proven guilty. But the provision of the SOC Act ignores
the principle completely and starts the trial with a mindset that accused has committed a
crime and require to prove it in negative which is in stark contrast to the basic principle.

1.1 That reverse burden of proof is not in line with the basic principle of innocence of
criminal jurisprudence.

A. The “Presumption of Innocence” is one of the fundamental principles of criminal

jurisprudence which axiomatically enunciates that an accused is presumed to be innocent
until proven guilty. This fundamental principle is underpinned by the maxim ‘semper
necessitas probandi incumbit ei qui agit’: the necessity of proof lies with the person who
levels the charges.
B. The presumption of innocence, the principle that an accused should be presumed
innocent unless and until proved guilty, is perhaps the fundamental principle of
procedural fairness in criminal law.2 It is considered fundamental because it is believed
that allowing the guilty to go free is better than convicting the innocent. 3 Lying at the
heart of criminal law, this principle is invaluable for protecting an accused in a criminal
trial, which is seen to be a contest between two unequal actors, namely the State and the
accused. It protects his fundamental liberty and human dignity, preventing him from
being subjected to the grave socio-legal consequences of a conviction unless his guilt is
unequivocally established.

2
Andrew Ashworth, Principles of Criminal Law 72 (2009).
3
Victor Tadros & Stephen Tierney, The Presumption of Innocence and the Human Rights Act, 67(3) Mod. L.
Rev. 402 (2004).
MEMORIAL ON BEHALF OF PETITIONER
1
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

C. This is essential in any society that believes in equity and social justice and thus, the
principle is worthy of paramount respect by both the legislature and the judiciary.4
D. Since presumption of innocence is the fundamental element of a trial, the legal or
ultimate burden of proof is always on the prosecution to prove the guilt of the accused. 5
The prosecution must, therefore, prove a concurrence between mens rea6 and actus reus7
beyond reasonable doubt in order to discharge its burden. 8 The burden is on the accused
to rebut the court’s presumption that a particular exculpating circumstance was absent by
raising either a defence or an exception.9
E. Landmark English case of Woolmington v. DPP10 the House of Lords observed:
"Throughout the web of the English Criminal Law one golden thread is always to be seen
that it is the duty of the prosecution to prove the prisoner's guilt subject to... the defence
of insanity and subject also to any statutory exception. If, at the end of and on the whole
of the case, there is a reasonable doubt, created by the evidence given by either the
prosecution or the prisoner... the prosecution has not made out the case and the prisoner
is entitled to an acquittal. No matter what the charge or where the trial, the principle
that the prosecution must prove the guilt of the prisoner is part of the common law of
England and no attempt to whittle it down can be entertained.”
F. Reverse onus clauses or reverse burdens, however, constitute a singular exception to this
fundamental rule, supplanting the ‘golden thread’11 of criminal law with a presumption of
guilt. They strip the principle of its very essence and replace ‘innocent until proven
guilty’ with ‘guilty until proven innocent’, making the accused a presumptive criminal
who needs to prove his innocence. Reverse onuses dilute the prosecution’s legal burden
to the extent that the prosecutor is required to prove only a minimum threshold (also
4
Byron M. Sheldrick, Shifting Burdens and Required Inferences: The Constitutionality of Reverse Onus
Clauses, 44(2) U. Toronto Fac. L. Rev. 179, 180 (1986).
5
The Indian Evidence Act, 1872, Sec. 101: Burden of Proof - Whoever desires any Court to give judgment as to
any legal right or liability dependant on the existence of facts which he asserts, must prove that those facts exist.
When a person is bound to prove the existence of any fact, it is said that the burden of proof lies on the person.
6
The literal translation from Latin is "guilty mind." A mens rea refers to the state of mind statutorily required in
order to convict a particular defendant of a particular crime.
7
Actus reus is a Latin phrase for “guilty act”. Actus reus is the wrongful deed that comprises the physical
components of a crime that must be coupled with mens rea for one to be held criminally liable.
8
Tadros & Tierney, supra note 2, 406.
9
The Indian Evidence Act, 1872, sec.105: Burden of proving that case of accused comes within exceptions-
When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case
within any of the General Exceptions in the Indian Penal Code (45 of 1860) or within any special exception or
proviso contained in any other part of the same Code, or in any law defining the offence, is upon him, and the
Court shall presume the absence of such circumstances.
10
Woolmington v. DPP, (1935) AII (ERI)
11
Woolmington v. D.P.P., [1935] A.C. 462 (‘Woolmington’).
MEMORIAL ON BEHALF OF PETITIONER
2
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

referred to as the basic or predicate fact), which is the actus reus. 12 Based on the minimal
amount of proof adduced, the culpability of the accused is presumed and the burden to
establish absence of mens rea is then shifted to the accused.13 The burden upon the
accused in such cases, also known as the persuasive burden, is ultimate or legal because
failure to discharge it will result in the conviction of the accused.14
G. In Kali Ram v. State of H.P.15, the S.C observed “it is no doubt that wrongful acquittals
are undesirable and shake the confidence of the people in the judicial system, much
worse; however, is the wrongful conviction of an innocent person. The consequences of
the conviction of an innocent person are far more serious and its reverberations cannot
be felt in a civilized society.”

1.2 That every accused has an inbuilt right to be dealt fairly in a criminal trial.

H. A trial primarily aimed at ascertaining truth has to be fair to all concerned which includes
the accused, the victims and society at large. Each person has a right to be dealt with
fairly in a criminal trial. Denial of a fair trial is as much injustice to the accused as it is to
the victim and society. An accused has a right to fair trial. Under our Constitution as also
the international treaties and conventions, the right to get a fair trial is a basic
fundamental/human right.16 He has a right to defend himself as a part of his human as
also fundamental right as enshrined under Art. 21 of the Constitution of India. The right
to defend oneself and for that purpose to adduce evidence is recognized by the
Parliament in terms of sub-sec. (2) of Sec. 243 of the Code of Criminal Procedure,1973.
"Fair trial" includes fair and proper opportunities allowed by law to prove her innocence.
Adducing evidence in support of the defence is a valuable right. In a criminal case,
denial of that right means denial of fair trial. This issue now stands concluded by
decision of Ho’nble Apex Court in Kalyani Baskar (Mrs.) v. M.S. Sampoornam
(Mrs.)17.
I. In Zahira Habibullah Sheikh and ors v. State of Gujarat and ors 18 The S.C of India
observed “each one has an inbuilt right to be dealt with fairly in a criminal trial. Denial

12
Sheldrick, supra note 3, 181-182.
13
Tadros & Tierney, supra note 2, 418
14
State of Tamil Nadu v. A. Vaidyanatha Iyer, AIR 1958 SC 61
15
Kali Ram v. State of H.P, (1973) 2 SCC 808
16
Dwarka Prasad Agarwal (D) By LRs. v. B.D. Agarwal and Others [(2003) 6 SCC 230]
17
Kalyani Baskar (Mrs.) v. M.S. Sampoornam (Mrs.), [(2007) 2 SCC 258].
18
Zahira Habibullah Sheikh and ors v. State of Gujarat and ors, (2004) 4 SCC 158
MEMORIAL ON BEHALF OF PETITIONER
3
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

of a fair trial is as much injustice to the accused as it is to the victim and to society. Fair
trial obviously would mean a trial before an impartial judge, a fair prosecutor and an
atmosphere of judicial calm. Fair trial means a trial in which bias or prejudice for or
against the accused, the witness or the cause which is being tried, is eliminated.”

1.2.1 That reverse burden of proof is an attempt to trample upon the Fundamental Rights
of the accused
J. It is humbly submitted that fundamental Rights enriched in the Indian Constitution
ensure that everybody is treated equally. Right to equality 19 gives protection not only
against discrimination, but also protection against arbitrary or irrational act of the state. 20
But it seems that the word everybody does not include the persons merely accused of a
crime under POCSO Act, 2012.
K. As the person accused is presumed guilty and hence has to prove his innocence that
means the burden of proof has been shifted on the accused which is contrary to the
fundamental principles of criminal jurisprudence. Sec. 29 and 30 of POCSO Act, 2012
are in violation of Art. 14, 20(3) and 21 of the Indian Constitution.
a) The Presumption of Guilt used in POCSO ACT, 2012 is in violation of Art. 14
L. Art. 14 of the Constitution of India ensures equality before law and equal protection of
law.21 The procedure established even under the special law cannot be arbitrary, fanciful
or oppressive.22 Presumption of innocence is a fundamental principle in the jurisprudence
of criminal law.23Therefore, presumption of guilt on an accused is tested on the anvil of
state's responsibility to protect innocent citizens.24
M. The Hon'ble S.C in the case of Noor Aga v. State of Punjab25 stated that:
“enforcement of law, on one hand and protection of citizen from injustice in the hands of
the law enforcement machinery, on the other, is required to be balanced.”26
N. Art. 14 says that classification should be reasonable and not imitation, elusive or
arbitrary. There should be significant peculiarity between things or people clustered
together in the class from others that are left out of it. Group of person which are

19
Art. 14 of constitution of India
20
Durga Das Basu, Commentary On The Constitution Of India 970 (8th ed. 2009).
21
Art. 14 of the constitution
22
Kathi Raning Rawat v. State of Saurashtra, AIR 1952 SC 123.
23
Rajesh Ranjan Yadav @ Pappu Yadav v. CBI, (2007) 1 SCC 70.
24
Directorate of Revenue and Anr.v.Mohammed Nisar, (2008) 2 SCC 37.
25
Noor Aga v. State of Punjab and Ors.(2008) 2 SCC 37.
26
S v. Dlamini, 1999 (4) SA 623 (S. Afr.).
MEMORIAL ON BEHALF OF PETITIONER
4
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

distinguished from other group which has been left out should reasonably be classified;
this is called the rule of intelligible differentia. With respect to the statute in question
which is to be achieved should have a reasonable nexus with the differentia adopted for
the classification.27 The basis here for classification has not been properly laid.
O. Recently, Zahid Mukhtar v. State of Maharashtra28 laid down tests to balance the
obligation of the reverse burden of proof and protection of rights of accused:
i. Firstly, the state is obligatory to establish and prove the foundational facts on the
equilibrium likelihoods, for the presumption of guilt on the accused to kick in.
ii. secondly, the burden should not subject the accused to any oppression or injustice.29
iii. Thirdly, these balanced facts should not involve a burden to prove negative and
should be within the knowledge of the accused
P. The sec.s failed to rationalise the connection between personal interest of the accused
and the welfare of the society. Accused should not be wrongfully convicted due to
fabrication of cases under the grab of child protection in case of POCSO Act, 2012.
Sec. 29 and 30 of POCSO Act, 2012 puts the presumption of guilt on the accused and it
is to be rebutted beyond reasonable doubt. The foundational facts through the medical
reports and the testimony of the child can be proved by the prosecution for the
presumption of guilt to rise.30 However, the child, due to his tender age can be easily
influenced or tortured to give a false testimony and fabricate a case. 31 Due to large
number of fabrication of false cases, the rational connection between the imposition of
the reverse onus clause and state's objective cannot be achieved because unless and
until the culpable mental state is negated beyond reasonable doubt, it would lead to
conviction.32
b) Right to remain silent under art. 20(3)
Q. The privilege provided by the criminal jurisprudence against self-incrimination is a
fundamental fact for every act under it. The said principle possesses some fundamental
characteristics.
i. Firstly, the accused person is presumed to be innocent.

27
Laxmi Khandsari v. State of Uttar Pradesh, AIR 1981SC 873.
28
Zahid Mukhtar v. State of Maharashtra, AIR 2017 Bom 140.
29
M/s Seema Silk and Sarees v. Directorate of Enforcement, (2008) 5 SCC 580.
30
https://www.legalserviceindia.com/legal/index.html
31
Radheyshyam v. State of Rajasthan, (2014) 5 SCC 389.
32
Megh Singh v. State of Maharashtra, AIR 1964 SC 575.
MEMORIAL ON BEHALF OF PETITIONER
5
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

ii. Secondly, prosecution has to establish the allegations and prove the guilt of such
person.
iii. Thirdly, the accused is not bound to say anything against his will and thus need not
make any such statement.33
R. The S.C in the case of M.P Sharma v. Satish Chandra,34 has held that the right to
remain silent is a part of right against self-incrimination. Moreover, such clauses also
ignore the legitimate apprehensions an accused may have about his failure to testify
being viewed as conclusive of his guilt. Thus, it is concluded that reverse onus clause
under the POCSO ACT, 2012 Act violates right to remain silent which comes under the
ambit of fundamental rights.
c) Art. 21 includes the right to fair trial
S. It was contended in A.K. Gopalan v. The State of Madras35 that under art. 21,
procedure established by law is equivalent to American's due process doctrine 36 and
therefore, the rationality of Preventive Detention Act and of any law that affects the
personal liberty or one's personal life, must be justifiable so as to establish that the
affected person was given a fair hearing and rights. 37 Due process ensures no individual
is deprived of his/ her property, life or liberty without following the basic rules of
jurisprudence for the security of private rights. 38 It guarantees just and fair trial to the
accused.39
T. Presumption of innocence is the cardinal principle and facet of fair trial under Art. 21.
In Rattiram v. State of M.P.40 it was held that a ‘fair trial' is the heart of criminal
jurisprudence and, in a way, an important facet of democratic polity that is governed by
the rule of Law. In P. Sanjeeva Rao v. State of A.P.41 it was held that: grant of fairest
opportunity to the accused to prove his innocence is the object of every fair trial.
U. Beyond reasonable doubt is a heavy burden imposed on the prosecution, so that there is
no doubt with the culpability of the accused and hence, no wrongful conviction can take

33
M. P. Jain, Indian Constitutional Law 1099 (7th ed. 2016).
34
M.P. Sharma v. Satish Chandra, AIR 1954 SC 300.
35
A.K. Gopalanv.The State of Madras, AIR 1950 SC 27.
36
Sunil Batra v. Delhi Administration, AIR 1978 SC 1675.
37
Jain, supra note 40, at 1116.
38
Hagar v. Reclamation Dist., 111 U.S. 701, (1884); Chambers v. Florida, 309 U.S. 227, (1940).
39
Maneka Gandhi v. Union of India, AIR 1978 SC 1675.
40
Rattiram v. State of Madhya Pradesh, AIR 2012 SC 1485(1495).
41
P. Sanjeeva Rao v. State of Andhra Pradesh, (2012) 7 SCC 56 (63).
MEMORIAL ON BEHALF OF PETITIONER
6
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

place.42 This takes away the basic principle of presumption of innocence of the accused,
which in turn vitiates the fair trial. When the procedure prescribed by the law is
arbitrary, fanciful and oppressive and violative of art. 14, it would be no procedure
under art. 21 as well.43

1.3 Mere charge under the statute not enough for the reverse burden to apply.

V. It is humbly submitted before this hon’ble court That the right of the accused to a fair
trial could not be whittled down under the Act was considered in Noor Aga v. State of
Punjab44, observing:- An initial burden exists upon the prosecution and only when it
stands satisfied, would the legal burden shift. Even then, the standard of proof required
for the accused to prove his innocence is not as high as that of the prosecution. Whereas
the standard of proof required to prove the guilt of the accused on the prosecution is
“beyond all reasonable doubt” but it is “preponderance of probability” on the accused.
If the prosecution fails to prove the foundational facts so as to attract the rigours of Sec.
35 of the Act, the actus reus which is possession of contraband by the accused cannot be
said to have been established.
W. In Sachin Kakde v. State of Maharashtra45 the Bombay High Court (Aurangabad
Bench) set aside the conviction of the Accused charged under provisions of the
Protection of Children from Sexual Offences Act observing-

 “when a person is prosecuted for commission of the offence specified in the

said sec., the Court is required to presume that the said person has
committed the said offence unless the contrary is proved.
 The presumption, however, cannot be said to be irrebuttable. Infact, no
presumption is irrebuttable in law, as this cannot be equated with conclusive
proof. The provisions of sec. 29 of the POCSO Act mandates the Court to
draw the presumption unless contrary is proved.

Thus, it is pellucid that unless the foundational facts are not established by the prosecution, a
mere charge under a statute would not be enough for the presumption to apply.

42
Leary v. United States, 395 U.S. 6, (1960).
43
District Registrar ad Collector v. Canara Bank, (2005) 1 SCC 496.
44
Noor Aga v. State of Punjab, (2008) 16 SCC 417
45
Sachin Kakde v. State of Maharashtra, 2016 All.M.R. Cri. 4049
MEMORIAL ON BEHALF OF PETITIONER
7
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

X. In David vs. state of kerela46 The court observed that the literal meaning of the words
used in Sec. 29 of POCSO Act, appears to be constitutionally suspect and against the
presumption of innocence available to the accused in a criminal case. The court also
added that the presumption of innocence cannot be equated per se with the constitutional
right to life and liberty adumbrated in Art. 21 of the Constitution of India. Taking note of
the procedure required to be adopted while trying POCSO case, the judge observed: "In
so far as the provisions contained in Sec.s 226, 227 and 228 of the Code apply for trial of
the cases under the POCSO Act, there cannot be any doubt that it is obligatory for the
prosecution to make available before the court the evidence sufficient for proceeding
against the accused and Sec. 29 of the POCSO Act does not absolve the prosecution from
the said obligation and if evidence sufficient for proceeding against the accused are not
made available, the accused is entitled to be discharged."
Y. The court also added that, in a criminal trial, the 'legal burden', namely the burden of
proving everything essential to establish the charge against the accused lies upon the
prosecution, and that burden never shifts, and notwithstanding the same, the 'evidential
burden' namely the burden of proving one or more fact/facts in issue may be laid by law
upon the accused. It said: "Like similar statutory provisions dealing with presumptions,
Sec. 29 of the POCSO Act is also only a rule shifting the evidential burden in a
prosecution. Generally, in a criminal trial, the Prosecution would fail even if the accused
does not adduce any evidence, or if the evidence adduced by the prosecution do not
prove beyond reasonable doubt the guilt of the accused. But, in a trial under the POCSO
Act, Sec. 29 operates at the stage after the stage under Sec. 232 of the Code. In other
words, in a given case, if the prosecution adduces evidence to prove the essential and
foundational facts constituting the offence, notwithstanding its reliability and
trustworthiness, it will be presumed that the accused has committed or abetted or
attempted to commit the offence alleged against him, unless the contrary is proved by
him, for at this stage, onus to disprove the fact of commission of the offence shifts on to
the accused. "47
Z. In Sri Joubansen Tripura vs. The State of Tripura 48 "Upon meticulous reading of Sec.
29 and 30 of the POCSO Act, according to us, prosecution will commence the trial with
an additional advantage that there will be presumption of guilt against the accused
46
David vs. state of kerela, CRL.A.NO.419 OF 2019
47
David vs. state of kerela, CRL.A.NO.419 OF 2019
48
Sri Joubansen Tripura vs. The State of Tripura, CRL. A.(J) 30 of 2018
MEMORIAL ON BEHALF OF PETITIONER
8
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

person, but, in our considered view, such presumption cannot form the basis of
conviction, if that be so, it would offend Art. 20(3) and 21 of the Constitution of India.
Perhaps, it is not the object of the legislature to incorporate Sec.s 29 and 30 under the
POCSO Act." The Court observed.

Therefore, at the end of this issue it is humbly submitted that doctrine of reverse burden of
proof under SOC Act is an attack on the principle of presumption of innocence which
violates the fundamental rights of the accused to have a fair trial.

MEMORIAL ON BEHALF OF PETITIONER

9
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

2) WHETHER THE ACCUSED MR. BLOOM HAVE A RIGHT TO PRIVACY AND

MORE SPECIFICALLY RIGHT TO BE FORGOTTEN WITH RESPECT TO
THE CRIMINAL IDENTIFICATION ACT, 2022.

It is humbly submitted before this hon’ble court that Mr. bloom has right to privacy and right
to be forgotten with respect to criminal identification Act, 2022

2.1 That the principle of presumption of innocence is a golden thread of criminal law

A. The presumption of innocence is an authorized and valid presumption. It has not only the
endorsement of a venerable life, but it is the ordinary guide of our daily lives. We all act
upon it from moment to moment. If we should abandon the principle that men prefer
rectitude to wrong-doing, and that men do right rather than wrong, and that crime is the
exception instead of the rule, civilization would forthwith abandon us, and we should
revert to savagery. All our institutions are built upon it. We know its truth, by constant
verification. Because one can be accused of a crime without being a criminal, an
elementary principle of justice requires that plaintiffs prove their allegations and that the
accused be considered innocent in the interval between accusation and judgment is
followed. This is known as the presumption of innocence.
B. In the famous case of Woolmington v. Director of Public Prosecutions,49 this principle
was referred to as ‘golden thread principle of criminal law’. Today, this principle finds
place in the criminal jurisprudence of various common law countries such as the United
Kingdom, Canada, South Africa, United States of America and India.

2.1.1. That accused have right to privacy which is a facet of right to life under art. 21 of
the constitution

C. Privacy is a fundamental human right provided for in numerous international treaties and
conventions. It is important for protection of human dignity and is one of the essential
pillar for a democratic nation. It supports one’s own rights and other’s rights as well.
D. Privacy is a right to be enjoyed by every human being by virtue of his or her own
existence. It also extends to bodily integrity, personal autonomy, compelled speech and

49
Woolmington v. Director of Public Prosecutions, 1935 UKHL 1, AC 462.
MEMORIAL ON BEHALF OF PETITIONER
10
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

freedom to dissent or move or think. The right to privacy is to restrain govt. and private
actions that threaten or hinders the privacy of individuals.
E. A 9-judge bench of the S.C in its decision in Puttaswamy-I 50 conclusively established the
right to privacy as a fundamental right is protected under Art. 21 of the Indian
Constitution. Retention of data which constitutes private information, amounts to an
interference with the right to privacy.
F. A recent study commissioned by the National Human Rights Commission (NHRC) has
recommended that the identities of men accused of sexual assault should be protected
until they are found guilty of the crime. Conducted by the Centre for Women’s
Development Studies (affiliated to the ministry of education), the study sought to
understand the reasons for sexual crimes against women from the point of view of sexual
assaulters. It has recommended that the identities of accused men should be concealed
until they are found guilty so as to protect them from “false cases.” Titled “Interrogating
Violence Against Women from the Other Side: An Exploratory Study into the World of
Perpetrators,” the study mentioned that while revealing the identity of the survivors of
sexual crimes is a punishable offence, the same anonymity is not extended to alleged or
actual sexual offenders. It said, “A time has come, when there is a need for safeguards to
protect the accused from ‘false claims’.”
G. Answering the issue concerning violation of Right to life and Right to Privacy due to the
said publication, the Court relied on the judgment of KS Puttuswamy v. Union of India
and observed that the judgment focusing on an aspect of privacy as a right to life has in
fact insulated an individual from exercise of authority either by the legislation or the
State so to prevent a person being made an object of ridicule or scorn.
H. "In the above backdrop, it is apparent that neither socially nor politically it is desirable to
curtail human dignity, which is infringed when names of accused persons are displayed
on the flysheet board of the police station concerned or anywhere else without there
being any proclamation issued against them under Sec. 82 Cr.P.C. Thus, this practice of
putting the names on the flysheet board is derogatory to the concept of human dignity
and privacy."51 The court held.
I. Concurring judgment of Justice Pankaj Naqvi: Justice Naqvi while agreeing upon the
reliefs granted, touched upon the larger issue of public importance i.e. Whether the State
50
KS Puttaswamy v. Union of India (2017) 10 SCC 1 [17, 29, 221].
51
Jeeshan @ jaanu and Anr. Vs. state of U.P. and others, CRIMINAL MISC. WRIT PETITION NO. – 10974
OF 2020, Mohd Nayyar Azam Vs. State of Chhattisgarh, (2012) 8 SCC 1
MEMORIAL ON BEHALF OF PETITIONER
11
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

has a right to disclose the identity and criminal antecedents of an accused in the public
domain? "Dignity means self-respect. It cannot be gainsaid that once self-respect is
affected, dignity is compromised. Dignity of an individual is inalienable and is not
dependent on the status and class of an individual as it originates from the person being a
human being and continues even after death." J. Naqvi opined.

2.2 That Right to be forgotten falls under the scope of an individual’s Right to privacy,
which is a fundamental right under Art. 21 of the Constitution
J. The Right to be forgotten is one’s right to remove personal information like photographs,
videos, and other identifying information from publicly available sources such as internet
searches and other online directories under certain circumstances. This right has its roots
in the French right of oblivion and the first case on this right was Mario Costeja
Gonzalez vs. Google Spain52 (2014). In this case, the European Court of Justice ruled in
favour of Mr. Mario and directed Google to remove inadequate, irrelevant or no longer
relevant data from its search results on the request from a member of the public. Thus,
the European Court observed the Right to privacy to be above the economic interest and
the Right to information of the public.

K. In India, the question of the Right to be forgotten first came up before the judiciary in the
case of Dharamraj Bhanushankar Dave v. State of Gujarat & Ors53 before the Gujarat
High Court. In this case, the petitioner had been accused of the offences of criminal
conspiracy, murder and kidnapping and was acquitted by the Court and thus, he wanted
that respondent should be barred from publishing the non-reportable judgment on the
internet; since, it could be detrimental to the petitioner’s personal and professional life.
However, the court did not recognize the ‘Right to be forgotten’ to exist in India.

L. Once gain in the case of Jorawar Singh Mundy vs. Union of India 54 ‘Right to be
forgotten’ was claimed in which the Single Judge bench comprising Justice Pratibha M.
Singh held that, on one hand there is petitioners' right to privacy and on the other hand
public’s Right to Information & Preservation of transparency in judicial records.
However, the court recognized the petitioner's right to privacy above all and held that it

52
Mario Costeja Gonzalez vs. Google Spain, 2014
53
Dharamraj Bhanushankar Dave v. State of Gujarat & Ors, 2015 SCC OnLine Guj 2019
54
Jorawar Singh Mundy vs. Union of India (W.P. (C) 3918/ 2020)
MEMORIAL ON BEHALF OF PETITIONER
12
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

had been infringed and directed the respondents to remove access to the judgment from
their portals.

M. The Indian law does not statutorily recognize the right to be forgotten as clearly as it's
provided under EU Data Protection Laws; however, the S.C in the celebrated K.S.
Puttaswamy vs. Union of India55 case, while regarding a citizen's right to be forgotten
commented that “If we were to recognize a similar right, it would only mean that an
individual who is no longer desirous of his data to be processed or stored, should be able
to remove it from the system where the personal data/information is no longer necessary,
relevant, or is incorrect and serves no legitimate interest”

N. The Right to be forgotten falls under the scope of an individual’s Right to privacy, which
is a fundamental right under Art. 21 of the Constitution of India. But, the position on
whether the right to be forgotten is a fundamental right in India is still not very clear.
However, this right can become a statutory right due to the B.N Shri Krishna
committee’s recommendation under the Personal Data Protection Bill, 2019; which is yet
to be passed by Parliament; as, Sec. 20 under Chapter V of this draft bill titled “Rights of
Data Principal” expressly recognizes this right.

O. In Rout vs. State of Orissa56, The Orissa High Court reaffirmed the need for the
legislative recognition of the right to be forgotten and remarked that the right to be
forgotten is an integral part of the right to privacy and held that in cases where a victim’s
right to privacy has been violated, the victim or the prosecution may approach a Court to
seek appropriate orders and have the content removed from public platforms.

P. The measurements, as defined under Cl. 2(1)(b), constitute private or personal

information. Justice Chandrachud’s plurality opinion in Puttaswamy-I affirmatively
cited57 S and Marper v. United Kingdom,58 where the ECtHR had held that “fingerprints,
DNA profiles and cellular samples, constitute personal data…as they relate to identified
or identifiable individuals…The DNA profiles' capacity to provide a means of
identifying genetic relationships between individuals … is in itself sufficient to conclude

55
K.S. Puttaswamy vs. Union of India, (2017) 10 SCC 1
56
Rout vs. State of Orissa, 2020 SCC OnLine Ori 878,
57
KS Puttaswamy v. Union of India (2017) 10 SCC 1 [17, 29, 221]
58
S and Marper v. United Kingdom 2008 ECHR 1581.
MEMORIAL ON BEHALF OF PETITIONER
13
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

that their retention interferes with the right to the private life of the individuals concerned
…The possibility the DNA profiles create for inferences to be drawn as to ethnic origin
makes their retention all the more sensitive and susceptible of affecting the right to
private life…fingerprints objectively contain unique information about the individual
concerned allowing his or her identification…[and are] thus capable of affecting his or
her private life and retention of this information without the consent of the individual
concerned cannot be regarded as neutral or insignificant …”.59

Q. In Gaughran v. UK,60 ECtHR dealt with a scheme providing for indefinite retention of
DNA information and other personal information of persons convicted of certain minor
offences. The Court dismissed the argument that the increased collection of data results
in increased prevention of crime, and struck down the scheme for not having a provision
for removal of the data on the ex-convict’s application, in consideration of factors like
age of the person concerned, nature of offence, length of time elapsed, and the current
personality of the ex-convict. In S. and Marper v. UK, the ECtHR struck down a similar
scheme that indefinitely retained personal information of suspected and unconvicted
persons, and observed with particular concern, the retention of such information for
juvenile offenders.61 Further, it was also observed that the data storage period should be
proportionate to the nature and gravity of the offence. 62 A scheme of indefinite retention
or retention in perpetuity was uniformly held to be excessive with respect to the
legitimate aim of crime investigation and detection.

R. In Aycaguer v. France, a period of 40 years was interpreted as “indefinite storage, or at

least as a norm rather than a maximum.” Further, while the NCRB, as per Cls. 4(1) and
(2), shall store records of measurements, which necessarily may not include the samples
themselves; Cl. 4(3) provides that State notified agencies will collect, preserve and share
the measurements themselves. Given the definition of measurements includes biological
samples, and none of the provisions of the Bill require destruction thereof, it may be
assumed that the samples can also be retained indefinitely.

59
S and Marper v. United Kingdom 2008 ECHR 1581 [84].
60
Gaughran v. United Kingdom 45245/15.
61
S and Marper v. United Kingdom 2008 ECHR 1581 [54, 124].
62
Aycaguer v. France [2017] ECHR 587 [44].
MEMORIAL ON BEHALF OF PETITIONER
14
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

S. Thus, the Bill provides no timeframe for deletion of records of measurements for
convicted persons, detainees, as well as those compelled under Cl. 5 (including juvenile
offenders). Further, the Bill does not provide at all for destruction of samples taken from
any persons under the Bill, including from those who were arrested and subsequently
acquitted. There is no provision for deletion of samples as well as records based on
current personality of the person, likelihood of future criminality, severity of the offence,
nature of the offence, time elapsed since the offence, etc. Therefore, the indefinite
retention of such data and measurements is not necessary towards the legitimate aim of
aiding future investigations.

Therefore, at the end of this issue it is humbly submitted that there is clear violation of right
to privacy of the accused under the act and accused also have right to be forgotten with
respect to hid identity.

MEMORIAL ON BEHALF OF PETITIONER

15
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

3) WHETHER MR. SARVESH SHOULD BE HELD GUILTY OF A VIOLATION OF

THE REPRESENTATION OF PEOPLE ACT, 1951 FOR SUPPORTING THE
VICTIM?

It is humbly submitted before this hon’ble court that Mr. Sarvesh should be held guilty under
RPE Act, 1951 for supporting the victim.

3.1 That support given by Mr. Sarvesh to victim with malicious intent to lure them
constitute corrupt practice under RPI Act, 1951

A. It is humbly submitted that as per Sec 12363 of the Representation of people Act (RPA)
deals with the corrupt practices. Bribery: It is any gift, offer or promise by a candidate or
his agent or by any other person with the consent of a candidate or his election agent of
any gratification, to any person whomsoever, with the object, directly or indirectly of
inducing a person to withdraw or not to withdraw from being a candidate at an election or
an elector to vote or refrain from voting at an election.

B. Sec. 8A64 deals with the disqualification on ground of corrupt practices. Provided that the
period for which any person may be disqualified under this sub-sec. shall in no case
exceed six years from the date on which the order made in relation to him under sec. 99
takes effect.

C. As per Sec. 171B65, a person is said to commit bribery when he/she gives gratification to
someone with the object of inducing such person with regards to practicing his/her
electoral right, or as a reward, after such person has exercised his/ her electoral right after
being induced. The person taking such bribe and being induced into practicing his/her
electoral right differently is also guilty of the offence of bribery. For this sec., a person is
said to give gratification when they offer/attempt to give/ offer or attempt to procure
gratification. The person accepting or attempting to get gratification for changing his/her
pre-decided course and acting according to the wish of the one giving such gratification
shall be said to have received gratification.

63
Sec. 123. Corrupt practice, representation of people Act, 1951
64
Representation of people Act, 1951
65
Indian penal code, 1860
MEMORIAL ON BEHALF OF PETITIONER
16
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

D. A person committing the offence of bribery shall be punished with imprisonment which
may extend to one year, or a fine, or both, under the provisions of Sec. 171E.66 However, a
person bribed by the act of treating shall have to pay a fine only. “Treating” means
providing or accepting food, drink, entertainment or provision as gratification.

E. The disqualification of candidates is based on the violation of laws. Sec. 867 of the act
provides the grounds on which a person is disqualified from contesting elections in
case he/she has been convicted for the following offences. The operational word here
is ‘conviction’. Conviction is the word used when the charges pressed against the
defendant are held to be true by the court of law.

F. The S. Subramaniam Balaji judgment68, delivered by a two-judge Bench, had observed

that “although the law is obvious that the promises in the election manifesto cannot be
construed as ‘corrupt practice’ under Sec. 123 of RP Act, the reality cannot be ruled out
that distribution of freebies of any kind, undoubtedly, influences all people”.

G. While dealing with the issues of corrupt practices and electoral bribe by the Political
parties, this Hon’ble Court held in S. Subramaniam Balaji Vs State of Tamilnadu & Ors.
Although, the law is obvious that the promises in the election manifesto cannot be
construed as corrupt practice under Sec. 12369 of RPI Act, the reality cannot be ruled out
that distribution of freebies of any kind, undoubtedly, influences all people. It shakes the
root of free and fair elections to a large degree. The Election Commission through its
counsel also conveyed the same feeling both in the affidavit and in the argument that the
promise of such freebies at govt. cost disturbs the level playing field and vitiates the
electoral process and thereby expressed willingness to implement any directions or
decision of this Court in this regard.

H. Therefore, at last we can conclude that:-

a) Promise of irrational freebies from the public fund before the election unduly
influences voters, disturbs the level playing field, shakes the roots of a free-fair
election and vitiates purity of election process.
66
Indian penal code, 1860
67
Representation of people Act, 1951
68
S. Subramaniam Balaji v. State of Tamil Nadu, (2013) 9 SCC 659
69
Sec 123 corrupt practice
MEMORIAL ON BEHALF OF PETITIONER
17
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

b) Promise/distribution of private goods/services, which are not for public purposes, from
public funds before the election, violates Art.s 14, 162, 266(3) and 282 of the
Constitution.

c) Promise/distribution of irrational freebies from the public fund before election to lure
voters is analogous to Bribery and Undue Influence under S.171B and S.171C of the
IPC

3.2 That financial support to the victim by the MLA does not fall under the permissible
works of local area development scheme

I. The Govt. of India had framed "Member of Parliament Local Area Development
Scheme" under which MPs can recommend works to be carried out in their
constituencies. Since the MLAs are also frequently approached by their constituents for
carrying out small works of capital nature, the Govt. of Delhi has framed a scheme along
the pattern of the MPs Local Area Development Scheme.

3.2.1 List of Non permissible works.

a) Office buildings, residential buildings and other buildings relating to Central or State
Govt.s, Departments, Agencies and Organizations.

b) Works pertaining to commercial organizations, trusts, registered societies, private

institutions or co-operative institutions.

c) Grants and loans.

d) Memorials or memorial buildings.

e) Purchase of inventory or stock of any type.

f) Acquisition of land or any compensation for land acquired.

g) Assets for an individual benefit except those which are part of approved schemes.

h) Places for religious worship.

MEMORIAL ON BEHALF OF PETITIONER

18
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

The things which political parties offer during elections are just considered as lolipopes and
public fall in this trap in order to satisfy their temporary lust. This illegal activity must be
banned so that country and its constitution can be given in hands of true and honest leader.
The results can be positive only if people will stop accepting these freebies by political
parties.

MEMORIAL ON BEHALF OF PETITIONER

19
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

4) WHETHER THE VICTIM HAS A RIGHT TO PRIVACY? WHETHER THE

VICTIM IS ENTITLED TO COMPENSATION CONSIDERING BREACH IF
ADMITTED?

It is humbly submitted before this hon’ble court that victim has right to privacy under art. 21
of the constitution and entitled to compensation for the breach of privacy.

4.1 That identity of POCSO victim which is prone to disclosure must be kept confidential
to protect his/her right to privacy

A. It is humbly submitted that since community-based programs began serving victims of

domestic violence, sexual assault, and stalking, privacy and even secrecy have been
considered a crucial component of a victim’s safety. Many states have address
confidentiality programs for victims of domestic and sexual violence and stalking so that
survivors do not have to give out their home addresses. Survivor privacy is so critical to
their safety, that several federal laws include privacy and confidentiality provisions and
most states prohibit the disclosure of victim information.

B. One cannot also miss the existing social realities, which inflict shame and humiliation on
a rape victim. It is taking note of this reality of community sensibilities that the law has
constrained to preserve victim anonymity. Law operates in the 'here and now', within the
status quo. It is not always transformative. So long as the letter of law proscribes
disclosure of identity, it should be followed strictly, without exceptions.

C. The impact of the sexual offence is rightly pointed out in Bodhisattwa Gautam v.
Subhra Chakraborty,70, wherein the S.C reiterated that: “Rape is not only a crime
against the person of a woman (victim), it is a crime against the entire society. It
destroys the entire psychology of a woman and pushed her into deep emotional crises. It
is only by her sheer will power that she rehabilitates herself in the society which, on
coming to know of the rape, looks down upon her in derision and contempt. Rape is,
therefore, the most hated crime. It is a crime against basic human rights and is also

70
Bodhisattwa Gautam v. Subhra Chakraborty, (1996) 1 SCC 490
MEMORIAL ON BEHALF OF PETITIONER
20
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

violative of the victim‘s most cherished of the fundamental rights, namely, the right to life
contained in Art. 21.”

4.1.1 That there are laws-cum-guidelines of the courts which presses about the
confidentiality of the identity of the victim

D. Sec. 23(2)71 of the POCSO Act prohibits the disclosure of the identity of a child victim of
sexual offences "including his name, address, photograph, family details, school,
neighbourhood or any other particulars which may lead to disclosure of identity of the
child." Violation of this prohibition is a criminal offence, punishable with six months to
one year in jail as well as a fine.

E. Under IPC Sec. 228A. Disclosure of identity of the victim of certain offences etc.—
reads as follows: "Whoever prints or publishes the name or any matter which may make
known the identity of any person against whom an offense under sec. 376, sec. 376A, sec.
376B, sec. 376C or sec. 376D is alleged or found to have been committed (hereafter in
this sec. referred to as the victim) shall be punished with imprisonment of either
description for a term which may extend to two years and shall also be liable to fine"."

F. In Nipun Saxena & Anr. vs. Union of India & Anr 72. The bench comprising Justice
Madan B. Lokur and Justice Deepak Gupta issued the following 9 important directives.

71
(1) No person shall make any report or present comments on any child from any form of media or studio or
photographic facilities without having complete and authentic information, which may have the effect of
lowering his reputation or infringing upon his privacy.
(2) No reports in any media shall disclose, the identity of a child including his name, address, photograph,
family details, school, neighbourhood or any other particulars which may lead to disclosure of identity of the
child:
Provided that for reasons to be recorded in writing, the Special Court, competent to try the case under the Act,
may permit such disclosure, if in its opinion such disclosure is in the interest of the child.
(3) The publisher or owner of the media or studio or photographic facilities shall be jointly and severally liable
for the acts and omissions of his employee.
(4) Any person who contravenes the provisions of sub-sec. (1) or sub-sec. (2) shall be liable to be punished with
imprisonment of either description for a period which shall not be less than six months but which may extend to
one year or with fine or with both.
72
Nipun Saxena & Anr. vs. Union of India & Anr, 2018 SCC OnLine SC 2772
MEMORIAL ON BEHALF OF PETITIONER
21
2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

a) No person can print or publish in print, electronic, social media, etc. the name of the
victim or even in a remote manner disclose any facts which can lead to the victim
being identified and which should make her identity known to the public at large.

b) In cases where the victim is dead or of unsound mind the name of the victim or her
identity should not be disclosed even under the authorization of the next of the kin,
unless circumstances justifying the disclosure of her identity exist, which shall be
decided by the competent authority, which at present is the Sessions Judge.

c) FIRs relating to offences under Sec.s 376, 376A, 376AB, 376B, 376C, 376D, 376DA,
376DB or 376E of 39 IPC and offences under POCSO shall not be put in the public
domain.

d) In case a victim files an appeal under Sec. 372 CrPC, it is not necessary for the victim
to disclose his/her identity and the appeal shall be dealt with in the manner laid down
by law.

e) The police officials should keep all the documents in which the name of the victim is
disclosed, as far as possible, in a sealed cover and replace these documents by
identical documents in which the name of the victim is removed in all records which
may be scrutinised in the public domain.

f) All the authorities to which the name of the victim is disclosed by the investigating
agency or the court are also duty bound to keep the name and identity of the victim
secret and not disclose it in any manner except in the report which should only be sent
in a sealed cover to the investigating agency or the court.

g) An application by the next of kin to authorise disclosure of identity of a dead victim

or of a victim of unsound mind under Sec. 228A(2)(c) of IPC should be made only to
the Sessions Judge concerned until the Govt. acts under Sec. 228A(1)(c) and lays
down a criteria as per our directions for identifying such social welfare institutions or
organisations

h) In case of minor victims under POCSO, disclosure of their identity can only be
permitted by the Special Court, if such disclosure is in the interest of the child.
MEMORIAL ON BEHALF OF PETITIONER
22
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

i) All the States/Union Territories are requested to set up at least one ‘one stop centre’ in
every district within one year from today.

G. The society treats a ‘rape victim’ as an ‘untouchable’ and a ‘pariah’. The Court said:
“Even after a case is lodged and FIR recorded, the police, more often than not, question
the victim like an accused. If the victim is a young girl who has been dating and going
around with a boy, she is asked in intimidating terms as to why she was dating a boy.
The victim’s first brush with justice is an unpleasant one where she is made to feel that
she is at fault; she is the cause of the crime.”.
H. The court held that this also amounts to disclosing the identity of the victim and held that
no person can print or publish the name of the victim or disclose any facts which can
lead to the victim being identified and which should make her identity known to the
public at large.
I. SC in a 2003 judgment73 observed that it would be appropriate for Courts to refrain from
publishing identity of rape victims in judgments, having regard to the spirit of Sec. 228A
IPC "But keeping in view the social object of preventing social victimisation or ostracism
of the victim of a sexual offence for which Sec. 228-A has been enacted, it would be
appropriate that in the judgments, be it of this Court, High Court or lower Court, the
name of the victim should not be indicated we have chosen to describe her as ‘victim’ in
the judgment”, observed the judgment by SC bench of Justices Doraiswamy Raju and
Arijit Pasayat.

4.2 That the liability for wrongful actions of a person holding constitutional office is not
same as actions of an ordinary citizen
4.2.1 Duty is more than ordinary citizen

J. It is humbly submitted before this hon’ble court that the beauty of a Democratic country
lies in the balance between rights and duties. This not only brings development in an
individual’s personality but also in-turn contributed to the overall development of the
country as well. All in all, the relationship between rights and duties is very simple. We
live in a world where interdependence is inevitable. So, it is obvious that one’s right is
key to another’s a duty. For someone to enjoy their rights, someone else should do their
duty with utmost obedience. It is only then, that we will be able to secure our own rights.
73
Bhupinder Sharma vs State Of Himachal Pradesh, 2003 Supp (4) SCR 792
MEMORIAL ON BEHALF OF PETITIONER
23
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

Because, however good a constitution maybe, if we do not abide by it to its every word,
it’s as good as any sheet of paper. Describing the role of a king, at one place the greatest
King Chandra Gupta Maurya’s Guru Chanakya, had stated that “It is a king’s utmost
duty to look after the progress and welfare of the people of his country”.
K. We know that people representatives have a great influence on the people of locality or
public at large. Any act done by him has a great impact in the mind of the people. In the
present case Mr. Sarvesh who is a sitting MLA revealed the name of the victim during
election campaigning which in consequences badly impact the social life of the victim.

4.2.2 SC order for special court for MP/MLA

L. In Ashwini Kumar Upadhyay v. Union of India74 was filed on 30.08.2016 seeking a writ
of mandamus directing the Union of India to provide adequate infrastructure to set up
Special Courts to decide criminal cases against legislators within one year. That this
Hon’ble Court vide order dated 01.11.2017 passed order for setting up of Fast Track
Courts to deal with criminal cases of political personnel in the following terms: “4.
Insofar as setting up of Special Courts are concerned, setting up of Special Courts and
infrastructure would be dependent on the availability of finances with the States. Without
going into the controversy raised on the aforesaid score, the problem can be resolved by
having a Central Scheme for setting up of Courts exclusively to deal with criminal cases
involving political persons on the lines of the Fast Track Courts which were set up by the
Central Govt. for a period of five (05) years and extended further which Scheme has now
been discontinued.

4.2.3 That constitution bestowed special privileges to members which put them on
different pedestal as compare to ordinary citizen

M. The Parliamentary privileges are conferred on the members for the smooth functioning of
the parliament. But these rights should always be in conformity with the fundamental
rights because they are our representatives and work for our welfare. If the privileges are
not in accordance with the fundamental rights, then the very essence of democracy for
the protection of the rights of the citizen will be lost. It is the duty of the parliament not

74
Ashwini Kumar Upadhyay v. Union of India, WP (C) No 699 of 2016
MEMORIAL ON BEHALF OF PETITIONER
24
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

to violate any other rights which are guaranteed by the constitution. The members should
also use their privileges wisely and not misuse them.
N. The S.C in the State of Kerala Vs. K. Ajith and Others 75 significantly observed that
"Privileges and immunities are not gateways to claim exemptions from the general law of
the land, particularly as in this case, the criminal law which governs the action of every
citizen. To claim an exemption from the application of criminal law would be to betray
the trust which is impressed on the character of elected representatives as the makers
and enactors of the law".

4.3 That Victim is entitled to compensation owing to breach of her right to privacy

O. The most crucial right in case of a victim of sexual assault is her privacy. If it is a child,
eventually she may grow up to be a lady by the time the case comes up for hearing. In
such a case, revealing the name of the victim can lead to stigma and social shame. The
victim may have already gone through a series of counselling and support sessions to
move on with her life, at the time of the incident. Now when the case comes up, she has
to face the trial within herself and the society first, and then again face the trial in the
court. That is the reason many cases of sexual assault go unreported.

P. In Rudul Shah v. State of Bihar 76 , The Hon’ble Justice Chandrachud said’’ … In these
circumstances, the refusal if this court to pass an order of compensation in favour of the
petitioner will be doing mere lip service to his fundamental right to liberty which the
state Govt. has so grossly violated.’ Following this, the court awarded Rudul Shah a
compensation of Rs.30000. Along with it, the court also established that the right to seek
compensation ordinary resided in civil law (Tort Law). The Rudul Shah’s case was an
exception since there was grave harm due to state’s neglect. The S.C set a precedent for
the other courts. This compensatory jurisprudence fixes an obligation on the state to
protect the right to life and liberty or pay compensation in case of violation of
fundamental rights.

Q. Also in Sube Singh v. State of Haryana 77 , the court gave a condition to be fulfilled
before ordering compensation – Every court should ascertain if the violation of the right

75
State of Kerala Vs. K. Ajith and Others, LL 2021 SC 328
76
Rudul Shah v. State of Bihar, AIR 1983 SC 1086
77
Sube Singh v. State of Haryana, AIR 2006 SC 1117
MEMORIAL ON BEHALF OF PETITIONER
25
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

of life is patient and incontrovertible. After this, the court may proceed to give whatever
compensation it deems fit. This shows how vigilant the courts remain while hearing a
case pertaining to the right to compensation.

Therefore, at the end of this issue it is humbly submitted that MLA violated the privacy of the
victim by revealing her name so entitled for the compensation for the breach of her
fundamental rights.

MEMORIAL ON BEHALF OF PETITIONER

26
 2ND DR. PATANGRAO KADAM MEMORIAL NATIONAL MOOT
COURT COMPETITION ,2024

PRAYER
Wherefore in the light of facts stated, issues raised, arguments advanced and authorities cited,
it is most humbly prayed and implored before the Hon’ble SC, that it may be graciously
pleased to adjudge and declare that:

1. Doctrine of reverse burden of proof under SOC Act should be declared

unconstitutional.
2. Criminal identification Act, 2022 should be declared unconstitutional for the
infringement of fundamental rights.
3. Mr. Sarvesh should be held guilty under Representation of people Act, 1951.
4. Victim X is entitled to compensation for the breach of privacy.

(or)

Any other order as the Hon’ble court deems fit in the interest of equity, justice and good
conscience.

All of which is humbly and respectfully submitted.

Counsels for Petitioner

MEMORIAL ON BEHALF OF PETITIONER

27