MABIJS 6TH INTRA-COLLEGE MOOTCOURT COMPETITION-2023 MAB-23-20

TABLE OF CONTENT

CONTENTS PAGE NO.

TABLE OF CONTENT ….………………………… 01

LIST OF ABBREVIATIONS ……………………… 02

INDEX OF AUTHORITIES ………………………. 03

STATEMENT OF JURISDICTION ………………. 06

STATEMENT OF FACTS ………………………… 07

ISSUES FOR CONSIDERATION ………………… 08

SUMMARY OF ARGUMENTS ………………….. 09

ARGUMENTS ADVANCED ……………………. 11

PRAYER ....………………………………………... 23

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LIST OF ABBREVIATIONS

AIR ALL INDIA REPORTER

ART ARTICLE

ED EDITION

HC HIGH COURT

HON’BLE HONOURABLE

ORS OTHERS

NO. NUMBER

P. PAGE

SC SUPREME COURT

SCC SUPREME COURT CASE

SEC SECTION

UOI UNION OF INDIA

V. VERSUS

& AND

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INDEX OF AUTHORITIES

I. CONSTITUTION
1. Constitution of India
II. STATUTES
1. Epidemic Diseases Act, 1897
2. The Disaster Management Act, 2005
3. The Immoral Traffic (Prevention) Act, 1956
4. The Bengal Suppression of Immoral Traffic Act, 1933
5. Indian Penal Code 1860
6. The Constitution of India, 1950
7. Code of Criminal Procedure, 1973

III. BOOKS
1. “The Constitution of INDIA” by MP Jain, Lexis Nexis,
8th ED, 2022.
2. “The Constitution of INDIA” by J.N panday, central law
agency, 58th ED, 2021.
3. “The Constitution of INDIA” P.M Bakshi, Universal law
publishing CO.8th ED, 2007.
4. “Introduction to The Constitution of INDIA” by Durga Das
Basu, Lexix Nexix 20th ED, 2007.
5. “INDIAN Penal Code” by K.D Gaur, Universal Lexix
Nexis 7th ED, 2021.
6. “Criminal Procedure, 1973” by C.K Takwani, Lexix
Nexis, 4th ED, 2015.
IV. WEBSITES
1. https://timesofindia.indiatimes.com
2. https;//indianexpress.com
3. https;//blog.ipleaders.in
4. https;//m.timesofindia.com
5. https://www.scconline.com

6. https://indiankanoon.org/

7. www.legalblog. in

8. www.casemine.com

9. www.lawyersclubindia.com

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10. www.legalerystal.com

V. CASE LAW
1.Bhushan Power and steel limited V. Rajesh Verma (2014) 5
SCC 55

2. Andhra Industrial Works V. Chief Controller of Import AIR 1974

SC 1539 : (1974) 2 SCC 348

3. The Fertilizer Corporation Kamgar V. UOI & Ors. AIR 1981 SC

344 (1981) SCR 252 4

4. Romesh thappar v. state of madras, AIR 1950 SC 124 :1950 SCR

594

5.State of madras v. VG row, AIR 1952 SC 196

6. Kanubhai Brahmbhatt V. State of Gujrat AIR 1987 SC 1159 : 1989

SUPP (2) SCC 310

7. Kanubhai Brahmbhatt V. State of Gujrat 7 AIR 1987 SC 1159

: 1989 SUPP (2) SCC 310

8. Buddhadev Karmaskar V. state of West Bengal, AIR 2022 SC 25

9. Emma V. State of EFG Moot Proposition, para 1 ST

10. Special Court Bill V. Unknown AIR 1979 SC 478, (1979) 1 SCC
380, 1979 2 SCR A76

11. “Jabalpur V. Srivkant Shukla AIR 1976 SC 1207

12. Makkhan Singh V. State of Punjab AIR 1964 SC 381

13. State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat (2005)

14. Marbury v. Madison, the U.S Supreme Court February 24, 1803

15. Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala &

Anr AIR (1973) 4 SCC 225; AIR 1973 SC 1461

16. S. Varadarajan vs State Of Madras 1965 AIR 942, 1965 SCR (1)
243

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STATEMENT OF JURISDICTION

The council for the respondent, state, hereby humbly submitted to this HON’BLE SC
Jurisdiction under Art 32 of the constitution. The Respondent would like to humbly that writ
petition under Art 32 is not maintainable.

Art 32 provides as:-

Remedies for enforcement of rights conferred by this part-

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

(2) the SC shall have power to issue directions or orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, whichever may be
appropriate, for the enforcement of any of the rights conferred by this Part.

(3) Without prejudice to the powers conferred on the SC by clauses (1) and (2), Parliament
may by law empower any other court to exercise within the local limits of its jurisdiction all
or any of the powers exercisable by the SC under clause (2).

(4) The right guaranteed by this article shall not be suspended except as otherwise provided
for the constitution.

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STATEMENT OF FACTS

Incident Occurred
The state police arrest Emma, who is a sex worker, during pandemic situation, while she was
carrying on her profession (prostitution) under the local Anti prostitution law.

Supreme Court’s guidelines

The HON’BLE SC has declared a recent guideline before occurrence this case. The guideline
was declared regarding the legalization of the prostitution as a profession.

Emma’s Statement
Emma argues that her arrest during the pandemic violates her constitutional right as per the
Supreme Court ruling.

Filling Writ
Being aggrieved by the arrest, Emma file a writ petition to the HON’BLE SC as her
fundamental right is infringed .

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STATEMENT OF ISSUES

ISSUE NO. 1
Whether this writ petition is maintainable under article 32 of the Indian Constitution?

ISSUE NO. 2
Does the recent Supreme Court ruling recognizing prostitution as a profession apply to
Emma's case?

ISSUE NO. 3
Did Emma's arrest during the pandemic violate her rights to dignity and equal
protection under the law as guaranteed by the Supreme Court's ruling?

ISSUE NO. 4
Does the Supreme Court ruling seem to conflict with the Epidemic Diseases Act, of
1897?

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SUMMERY OF ARGUMENTS

ISSUE NO. 1
Whether this writ petition is maintainable under article 32 of the Indian Constitution?

It is humbly submitted before the HON’BLE SC that the writ petition under article
32 of the Constitution by the petitioner is not maintainable. Because here the fundamental
right of the petitioner is not violated through during the arrest and has no locus standi.

ISSUE NO. 2
Does the recent Supreme Court ruling recognizing prostitution as a profession apply to
Emma's case?

It is humbly submitted before the HON’BLE SC that the recent SC ruling

recognizing prostitution as a profession does not apply to Emma’s case because the SC
guideline regarding Buddhadev case was declared in a normal case or normal circumstances.
But the petitioner was arrested in an extraordinary situation which is called COVID-19.

ISSUE NO. 3
Did Emma's arrest during the pandemic violate her rights to dignity and equal
protection under the law as guaranteed by the Supreme Court's ruling?

It is humbly submitted before the HON’BLE SC that the Emma (petitioner)

during the pandemic did not violate her right because the extraordinary circumstances is
granted to prevent or suspend the fundamental right and the SC guideline did not maintain
about the extra-ordinary situation. So to stop the spread of the epidemic disease, the Arrest
was necessary for the public interest.

ISSUE NO. 4
Does the Supreme Court ruling seem to conflict with the Epidemic Diseases Act, of
1897?
It is humbly submitted before the HON’BLE SC that the SC ruling does
conflict with epidemic disease act. Because the SC given a guideline but there is no mention
about the epidemic disease but the epidemic disease act, 1897 has given the power to the state
under section 2 and 2(A) to make the local for preventing the disease. And the arrest was
made by the local anti prostitution law made by the state. And now the arrest is facing a
challenge. So if as per Art 142, the state will implement the SC guideline, then the epidemic
disease act, 1897 is inconsistent, and if the disease act, 1897 necessity to Prevent the spread
of COVID, then guideline of the SC will face the challenge.

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ARGUMENTS ADVANCED

ISSUE NO. 1: Whether this writ petition is maintainable

under article 32 of the Indian Constitution?

Counsel humbly submitted before HON’BLE SC that the writ

petition filed by the petitioner under Art 32 of the constitution of
ABC is not maintainable as writ petition is granted when the
fundamental right is infringed. In this present case there is no
violation of fundamental right & the petition is entitled to be
dismissed.

• LOCUS STANDI Art 32: Who can apply under Art 32.
In legal parlance, Locus Standi means the right or capacity or
standing to bring a legal action. The question in Art 32 is whether
party filling for an action before the Court has the entitlement to
do so.

A. PETITIONER HAS NO LOCUS STANDI- It is humbly submitted before HON’BLE

SC that the petitioner has no locus standi to file writ petition before the SC under Art 32.
As Art 32 can be invoked only when there is an infringement of fundamental right but in
this case there is no violation of fundamental right. In the case Bhushan Power and
steel limited V. Rajesh Verma, 1 the court has clearly held that if the violation of
fundamental right can’t be shown, then the writ petition can’t be maintained. In another
case Andhra Industrial Works V. Chief Controller of Import,2 it was held that no
action lies in the SC under Art 32 unless there is an infringement of a fundamental right.
The SC has emphasized “ The violation of fundamental right is the sine qua non of the
exercise of the right conferred by Art 32”.3

The arrest of the petitioner (Emma) didn’t violate her right to dignity and
equal protection. As the arrest, under local anti Prostitution law was made in an extra-
ordinary situation to stop the spread of COVID. COVID 19 situation can be defined as
National Emergency and in this situation every fundamental right as like Art 14,15,19,20
can be suspended.

• COVID 19 IS A NATIONAL EMERGENCY:- A bench headed by CH S.A

Bobde, the SC termed the Covid-19 situation as almost a “national emergency” while
agreeing to hear Vedanta’s plea for opening of its Sterlite copper unit at Tuticorin in

1
Bhushan Power and steel limited V. Rajesh Verma (2014) 5 SCC 551
2
AIR 1974 SC 1539 : (1974) 2 SCC 348
3
The Fertilizer Corporation Kamgar V. UOI & Ors. AIR 1981 SC 344 (1981) SCR 252

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Tamil Nadu on the ground that it would produce thousand tonnes of oxygen and give it
free of cost to treat patients.

B. JURISDICTION OF COURT- Art 12 to 35 in part III of the constitution deals with

fundamental right and violation of these Fundamental rights can be the ground to
approach before the HON’BLE HC under Art 226 before the HON’BLE SC under Art
32.

A question has been raised whether a petitioner seeking to enforce his

Fundamental Rights can go straight to the SC under Art 32, or should he first go to the
HC under Art 226. As early as 1950, in Romesh Thappar 4, the SC ruled that such a
petitioner can come straight to the SC without going to the HC first. The Court stated
that unlike Article 226, Article 32 confers a Fundamental Right on the individual and
imposes an obligation on the SC, which it must discharge when a person complains of
infringement of a Fundamental Right. Art 32 provides a guaranteed remedy for the
enforcement of the Fundamental Rights and constitutes the SC as the ' guarantor and
protector of Fundamental Rights." This proposition has been reiterated by the Supreme
Court in a number of cases. 5 But this reference was recognize in earlier cases now in
present situation, the rule of Kanubhai6 case is applied.

This continued to be the position till 1987 when a two- judge bench of the SC
ruled in Kanubhai Brahmbhatt V. State of Gujrat7 that a petitioner complaining of
infraction of his fundamental right should approach the HC first rather than the SC in the
first instance. The reason for this view was that there was a huge backlog of cases
pending before the SC.

ISSUE NO. 2: Does the recent SC ruling recognizing prostitution as a profession

apply to Emma’s case?

It is humbly submitted to the HON’BLE S.C that the recent Supreme Court ruling
judgement is recognizing prostitution as a profession does not apply to the Emma’s case.
As resent judgement regarding Buddhadev Karmaskar V. state of West Bengal8 case
and the present case Emma V. State of EFG9 is not bearing the same fact or the same
circumstances.

• RECENT SC GUIDELINE IN BUDDHADEV CASE:-

Facts:

4
Romesh thappar v. state of madras, AIR 1950 SC 124 : 1950 SCR 594
5
State of madras v. VG row, AIR 1952 SC 196
6
Kanubhai Brahmbhatt V. State of Gujrat AIR 1987 SC 1159 : 1989 SUPP (2) SCC 310
7
AIR 1987 SC 1159 : 1989 SUPP (2) SCC 310
8
Buddhadev Karmaskar V. state of West Bengal, AIR 2022 SC 25
9
Moot Proposition, para 1st

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The deceased Chaya Rani Pal aka Buri was a sex worker in red light area of Jogen
Datta lane in Kolkata.
On the night of 17 September 1999, she was sleeping outside her room, near the staircase
on the second floor of her three storey apartment in the red light area in Jogen Datta lane.
The accused Budhadev Karmaskar, went their around 9 pm and assaulted the deceased
brutally with his fist and legs
The deceased fell down to the first floor then after the accused dragged her through hairs
and pushed her head against the wall.
She had eleven injuries on the face and was bleeding extravagantly.
On being revolted by the other residents, he ran away.
Asha Khatun, one of the residents was the eye-witness of the entire incident.
Buri was immediately brought to the Medical college hospital but by then she lost life.
After few hours, around 2 am, the accused was arrested by the police in the Jogen Datta
lane only.

LEGALIZATION OF PROSTITUTION : Recently, in a significant order, Supreme

Court has recognised sex work as a “profession” and observed that its practitioners are
entitled to dignity and equal protection under law.

The court invoked its special powers under Article 142 of the Constitution.
Article 142 provides discretionary power to the Supreme Court as it states that the
Supreme Court in the exercise of its jurisdiction may pass such decree or make such
order as is necessary for doing complete justice in any cause or matter pending before it.

In 2020, the National Human Rights Commission (NHRC) recognised sex

workers as informal workers.

Criminal Law:
Sex workers are entitled to equal protection of the law and criminal law must apply
equally in all cases, on the basis of ‘age’ and ‘consent’.
When it is clear that the sex worker is an adult and is participating with consent, the
police must refrain from interfering or taking any criminal action.

Article 21 declares that no person shall be deprived of his life or personal

liberty except according to procedure established by law. This right is available to both
citizens and non-citizens.
Sex workers should not be “arrested or penalised or harassed or victimised” whenever
there is a raid on any brothel, “since voluntary sex work is not illegal and only running
the brothel is unlawful”

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PRESENT CASE EMMA V. STATE OF EFG :

In this present case Emma, a sex worker was arrested by the police during the
pandemic situation (COVID 19) while she was carrying on her profession, prostitution.
The arrest was, made by the local anti-prostitution law.

The HON’BLE SC in the case Buddhadev Karmaskar V. state of West Bengal

has decided as given a guideline that prosecution as a legal profession and sex worker’s
has the equal right and protection of dignity as well as no police officer will harass, arrest
or penalized them. But in this case the petitioner Emma was carrying on her profession is
an extraordinary circumstances that is COVID 19. So the local anti prostitution law
applied to prevent the spread of Corona virus. SC didn’t mention in it’s resent guideline
about extra-ordinary circumstances. So to prevent the potential COVID 19 & interest of
the public health the arrest was necessary to close contact between sex workers & client.

“What is an extraordinary circumstance ?”

Extraordinary circumstances means factors not normally incident to or
foreseeable during an administrative proceeding. It includes circumstances beyond a
party’s control that normal prudence and experience could not foresee, anticipate or
provide for.
The petitioner stated that the HON’BLE S.C ruling is extend with her case but
HON’BLE S.C did not mention about any extraordinary situation, then how the situation
like COVID may be prevented. And as per the state list at the Constitution schedule- VII
list- II entry 6 mention that state may make love regarding public health. And to protect
public health the arrest was done.
It can be noted that the arrest was made to stop the profession not to stop the prostitution
as the disease like COVID-19 force to stop all the other profession it is an emergency to
prevent the petitioner’s profession also.

ISSUE NO. 3: Did Emma's arrest during the pandemic violate her rights to dignity
and equal protection under the law as guaranteed by the Supreme Court's ruling?

It is humbly submitted to the HON’BLE SC that the arrest of the petitioner

during pandemic does not violate her right as the Emma’s arrest was made during the
pandemic situation in which the fundamental right.

ART 14: The State shall not deny to any person equality before the law or the equal
protection of the laws within the territory of India.”
This Art states right to equality of the person not the profession & Emma was arrested
for his profession & the arrest was made during emergency. In emergency situation also
be suspended.

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In Special Court Bill V. Unknown10 the 7th judge bench decision

Chandrachud, j reformulated inter alia, new proposition to be followed regarding the
applicability of the Art 14. The state, in the exercise of it's government power, has of
necessity to make laws operating differently on different group or classes of person
within its territory to attain particular ends in giving effect to it's policies.

ART 19(1) (g)

PROTECTION OF CERTAIN RIGHT REGARDING FREEDOM OF SPEECH:
All citizen shall have the right to practice any profession, or to carry on any occupation,
trade or business.

This Art has given all the person right to practice the profession and after
legalization of the prostitution as a profession the petitioner also has the right but this
article also impose reasonable restriction.

ART 19 (6)
Nothing in sub-clause (g) of the said clause shall affect the operation of any
existing law in so far as it imposes, or prevent the State from making any law imposing,
in the interests of the general public, reasonable restrictions on the exercise of the right
conferred by the said sub-clause, and, in particular, [nothing in the said sub-clause shall
affect the operation of any existing law in so far as it relates to, or prevent the State from
making any law relating to,—
(i) the professional or technical qualifications necessary for practising any profession or
carrying on any occupation, trade or business, or
(ii) the carrying on by the State, or by a corporation owned or controlled by the State, of
any trade, business, industry or service, whether to the exclusion, complete or partial, of
citizens or otherwise].
It is humbly submitted that the HON’BLE SC that the restriction is imposed for
the interest of the general public & the restriction of Emma’s profession is also a ground
of the interest of the general public. As COVID 19 is a International concern of health.

The HON’BLE S.C declared a guideline for the sex workers that legalization of
the prostitution as a profession in the case- Buddhadev karmaskar V. state of WB. But
there is no mention in the guideline about the emergency situation. So during pandemic,
the local authorities should have taken the step of arrest to stop the spread of COVID-19.

The violation of her right to dignity and equal protection of law is also not
applicable to the petitioner. Art 14 says equality before the law and equal protection of
law. But in this case there was no determination as an exceptional ground other
profession like shop, market, and other was also prevented for the COVID situation. So
here is no violation of article 14, 19(g), 20(1), 21 as COVID 19 is recognized as national
emergency & Art 350, 359 deals with the suspension of fundamental right.

10
AIR 1979 SC 478, (1979) 1 SCC 380, 1979 2 SCR A76

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In “Jabalpur V. Srivkant Shukla” 11 this landmark case, popularly known as

the “Habeas Corpus case,” raised significant questions regarding the scope and
limitations of Art 32. The S.C, in a controversial decision, held that during an
emergency, the right to move the court under Art 32 stood suspended.

In Makkhan Singh V. State of Punjab12 the court held detention of makkhan

singh is legal & Art 14, 21 & 22 was suspended in the mean time of national emergency.
In State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat (2005),13 the
Supreme Court has held that the expression ‘in the interest of general public’ in Article
19(6) is of wide import comprehending public order, public health, public security,
morals, economic welfare of the community and the objects mentioned in Part IV of the
Constitution.

SEC 144 OF CrPC

Section 144 is basically imposed in a given region/area in situations of
emergency, particularly in cases of nuisance or perceived danger of some event that has
the potential to create a troubling situation or result in harmful damage to human lives or
property. COVID-19 sadly falls under the exact situation.

As COVID-19 false under the Sec 144 of CrPC then it is also applicable for
suspension of fundamental right & Sec 144 has imposes in many state and union
territory. Restriction under Sec 144 were implemented September 17, 2020 due to the
city’s persistent rise in corona virus cases. With the Covid-19 pandemic gripping the
entire world since early 2020, Mumbai has been one of India’s worst-hit cities and this
action was taken to reduce the spread, as was done in several other cities.

To stem the spread of the corona virus, which had already claimed thousands of
lives worldwide, the Delhi government enacted Section 144 on March 23, 2020. As the
virus expanded throughout India, some states slapped Section 144, like the Delhi
government, in order to stop the local spread of COVID-19.

ISSUE NO. 4
Does the Supreme Court ruling seem to conflict with the Epidemic Diseases Act, of
1897?

It is humbly submitted before the HON’BLE SC that Epidemic Disease Act,

1897 was enacted with the intention to prevent the Epidemic Disease and the SC ruling
doesn’t conflict as it is the .part of checks and balance system of the constitution.

11
AIR 1976 SC 1207
12
AIR 1964 SC 381
13
State of Gujarat v. Mirzapur Moti Kureshi Kasab Jamat (2005)

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Element of the constitution :

• Lengthiest Written Constitution

• Drawn from Various Sources
• Blend of Rigidity and Flexibility
• Federal System with Unitary Bias
• Parliamentary Form of Government
• Synthesis of Parliamentary Sovereignty and Judicial Supremacy
• Rule of Law
• Integrated and Independent Judiciary
• Fundamental Rights
• Indian Secularism
• Universal Adult Franchise
• Single Citizenship
• Independent Bodies
• Emergency Provisions
• Three-tier Government
• Checks and Balance System

The Important Features of the Constitution is the checks and balance system.
The Parliament has the supreme power to make law & judiciary has the power over the
Parliament declare any law void if it conflicts the constitution on the other hand
executive has the power to implement law as per the need of the society Judiciary &
Parliament has the control over the executive. So the control mechanism makes the three
organ free from interference or separation of power as well as control over each other.
So the judiciary has declared a guideline regarding legalization of prostitution
as a profession mean while the state or local authority has the jurisdiction to prevent any
emergency situation.

In the case of Marbury v. Madison, the U.S Supreme Court 14 in the year
1803 declared that the legislative actions can also be questioned by the judiciary even
though there is no separate provision in the constitution of the U.S.A providing the
power of judicial review.

In the case of Kesavananda Bharati vs. the State of Kerala, 15 even though
the court after agreeing that the Parliament is not restricted to amend the Constitution,
also put a caveat of the doctrine of the basic structure. The Court observed that the

14
February 24, 1803
15
Kesavananda Bharati Sripadagalvaru & Ors. v. State of Kerala & Anr AIR (1973) 4 SCC 225; AIR 1973 SC
1461

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constitutional amendments have to be made only after considering the basic structure of
the Constitution.

In the case of State of Madras v. V.G. Row,16 while discussing the importance
of judicial review held that judicial review, itself is a limitation on the supremacy of the
legislature, and it is a fundamental part of our constitutional scheme and it is the duty of
the court to declare an enactment void if is in contravention to the provisions of the
Constitution.

16
S. Varadarajan vs State Of Madras 1965 AIR 942, 1965 SCR (1) 243

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PRAYER

In the last light of the facts of the cases, issues raised and argument advanced reason and
authorities cited, this HON’BLE SC be pleased.

To Reject
The writ filed by the petitioner under Art 32.

To Direct
The extra-ordinary circumstances may be included in the guideline and make the epidemic
act consistent with SC guideline.

To Declare
The arrest during the pandemic is not illegal.

To Held
The petitioner has no locus standi to file writ against arrest.

And to grant any other relief/s that this HON’BLE SC may be pleased in the
interest of justice, equity and good conscience.

All of which is respectfully submitted.

Counsel for the Respondent

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