URN: A
TEAM CODE: J
IN THE MATTER OF
Association for Citizens Welfare..PETITIONER
V.
Union of Megolia......RESPONDENT
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C.IMPORTANT DEFINITIONS
1. Petitioner for the purposes of this memorandum shall stand for Association for Citizens
Welfare.
2. Respondent for the purposes of this memorandum stands for Union of Mengoliya
3. The laws of Megoliyana are in pari materia with the laws of India for the purposes of this
Moot Court Proposition. The names used in the proposition are only artificial and not to
wound or hurt any individual or institution.
ABBREVIATIONS
AIR
HC
Honble
p.
r.w.s.
SCC
SCR
u/s
w.e.f
UOI
Vol.
v.
Supl.
Art.
MEMORANDUM FOR THE PETITIONER
EXPANSION
All India Reporter
High Court
Honourable
Page No.
Read with Section
Supreme Court Cases
Supreme Court Reporter
Under Section
With Effect From
Union of India
Volume
Versus
Supplementary
Article
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STATEMENT OF JURISDICTION
The Honble Supreme Court of Megoliyana has the jurisdiction in this matter under Articles 32,
129,142 of the Constitution of Megoliyana which reads as follows:
Article 32 remedies for enforcement of rights conferred by this Part(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
(2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part.
Article 129 in the Constitution empowers Supreme Court to be a court of record The
Supreme Court shall be a court of record and shall have all the powers of such a court
including the power to punish for contempt of itself.
Article 142 of Constitution deals with Enforcement of decrees and orders of Supreme
Court and orders as to discovery, etc.
(1)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, and any decree so passed or order so made shall be enforceable throughout the
territory of India in such manner as may be prescribed by or under any law made by
Parliament and, until provision in that behalf is so made, in such manner as the President
may by order prescribe.
(2) Subject to the provisions of any law made in this behalf by Parliament, the Supreme
Court shall, as respects the whole of the territory of India, have all and every power to
make any order for the purpose of securing the attendance of any person, the discovery or
production of any documents, or the investigation or punishment of any contempt of
itself.
STATEMENT OF FACTS
MEMORANDUM FOR THE PETITIONER
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1. At the time of independence then Home Minister promised that states have to surrender
only law and order, army and security to Megoliyana; Pan Goa agreed to be part of the
union on the condition that only three subjects will be transferred to union government.
2.
The framer of the constitution of Megoliyana considered the diversity and accordingly
provided exemptions for culture and minority and to protect its identity guaranteed this as
fundamental right. The Constitution of the Megoliyana is the last word for any issues
relating to subject of law and governance.
3. The people of Pan-Goa believe in liberty, privacy and equality. For them role of
Government certainly should be as promised by the union Home Minister. The people of
Pan-Goa are very open-minded towards each other. They constitute a liberal society
based on western thoughts.
4.
The Present Government is very conservative and in the name of protection of moral
degradation and culture of country issued various guidelines. In December, 2010 a
guidelines was issued to authorities to install CCTV cameras on all the streets and public
places including near religious and public places. This decision caused an uproar and
protest across the states.
5. Rule 5 of the regulation which gave power to the union government to install CCTV
cameras in such cities where in the opinion of government people are indulge in such
activities was questioned on ground of personal liberty. The union of Megoliyana made a
new regulation authorizing states to monitor all the celebration and state shall have right
to get decryption password of any encrypted data from any person across the union.
People of Pan-Goa marched against this in the leadership of their Chief Minister and
broken all the CCTV cameras and uploaded an encrypted video on social networking
sites. Union Government deployed Central Para Military forces and also dismissed the
elected Government of Pan-Goa on the ground of failure to maintain Law and order. The
DG Central Para Military forces arrested more than one individual and in flagrant
violation of criminal procedure without any court permission were confined in the head
quarter and forced to give password of the video.
6. The Association for Citizens Welfare filed a writ petition before the Supreme Court of
Megoliyana against the Union of Megoliyana with regard to various issues which have
been listed for hearing on 25th November, 2016.
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STATEMENT OF ISSUES
MEMORANDUM FOR THE PETITIONER
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I.
The writ petition filed by the petitioner is valid and maintainable under article 32 of
the Constitution:
The present petition is maintainable under Article 32 of the Constitution, since it falls within
the ambit of Government Authorities as enshrined under Art.12 of the Constitution. There
will be violation of Fundamental Rights if the project is taken on floors. One of the most
fundamental right of an individual is his right to privacy and personal liberty; if an
administrative decision may put his privacy and personal liberty at risk, the basis for the
decision surely calls for the most anxious scrutiny according to the principle of anxious
scrutiny1 . Thus the petitioned filed before this apex court is maintainable.
II.
Where there is well-founded allegation that fundamental right has been infringed alternative
remedy is no bar for entertaining writ petition and granting relief 2. The mere existence of an
adequate alternative legal remedy cannot be per se be a good and sufficient ground for throwing
out a petition under Art. 32 if the existence of a fundamental right and a breach, actual or
threatened, of such right and is alleged is prima facie established on the petition 3. In spite of
availability of the alternative remedy, the court may exercise its writ jurisdiction in at least
petitions where the petitioner seeks enforcement of any of the fundamental rights10. Thus, the
petitioner humbly submits that writ petition is maintainable as existence of alternative remedy is
not a bar.
1 Bugdaycay [1987] AC 514, where Lord Bridge said at 531E-G
2 State of Bombay V. United motors Ltd. AIR 1953 SC 252
3 K.K. Kouchunni V. State of Madras AIR 1959 SC 725
MEMORANDUM FOR THE PETITIONER Page 11
I.
The people of Pan-Goa are very open-minded and they constitute a liberal society based on
western thoughts. The new Government is ideologically conservative and in the name of
protection of people from moral degradation and securing culture of country issued various
guidelines to install CCTV. Moreover, cameras don't reduce crime. A recent study by the Scottish
Centre for Criminology shows that virtually all claims of crime prevention are false. Crimes of
passion, crimes involving drugs and alcohol, and actions by professional criminals are not
prevented by the cameras. In fact, the report says the incidence of violence and disorder in the
areas covered by the cameras is on the increase. Criminals have eyes too, and they know which
direction a camera is facing. To give people a false sense of security is negligent and
irresponsible. Anyone can set up a CCTV system. There is no licensing system. There is no
government agency to provide oversight. The technology falls outside the protection of law, and
the government has even made it exempt from planning requirements, so the people can't use
their democratic rights
Moreover cameras footages nowadays had been used for abuses like black mailing, voyeurism
etc. video surveillance cameras in public places are not a good idea because it is an infringement
on our civil liberties.
II.
Indian Constitution does not contain an explicit reference to a Right to Privacy, this right has
been read in to the constitution by the Supreme Court as a component of two Fundamental
Rights: the right to freedom under Article 19 and the right to life and personal liberty under
4 Harbanslal Sahnia vs. Indian Oil Corpn. Ltd.,(2003) 2 SCC 107
MEMORANDUM FOR THE PETITIONER Page 12
is
unconstitutional.
This case made two important contributions to communications privacy jurisprudence in India
the first was its rejection of the contention that prior judicial scrutiny should be mandated
before any wiretapping could take place. Instead, the court accepted the contention that
administrative safeguards would be sufficient. Secondly, the Court prescribed a list of procedural
guidelines, the observance of which would save the wiretapping power from unconstitutionality.
Kharak Singh V. The State of U.P.7, the question for consideration in this case was whether
"surveillance" under Chapter XX of the U.P. Police Regulations constituted an infringement of
any of the fundamental rights guaranteed by Part III of the Constitution. The meanings of the
word "life" and the expression "personal liberty" in Article 21 were elaborately considered by
this court in Kharak Singh`s case. Although the majority found that the Constitution contained
no explicit guarantee of a "right to privacy", it read the right to personal liberty expansively to
5 AIR 1973 SC 157
6 AIR 1997 SC 568
7 (1964) 1 SCR 332
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domiciliary visits and picketing of the suspects. The Supreme Court desisted from striking down
these invasive provisions holding that It cannot be said that surveillance by domiciliary visit-,
would always be an unreasonable restriction upon the right of privacy. It is only persons who are
suspected to be habitual criminals and those who are determined to lead a criminal life that are
subjected to surveillance. The court went on to make some observations on the right to privacy
under the constitution : Too broad a definition of privacy will raise serious questions about the
propriety of judicial reliance on a right that is not explicit in the Constitution.
Hence, assuming that the right to personal liberty. the right to move freely throughout India and
the freedom of speech create an independent fundamental right of privacy as an emanation from
them it could not he absolute. It must be subject to restriction on the basis of compelling public
interest This line of reasoning was continued in Malak Singh v State Of Punjab & Haryana 9
where the Supreme Court held that surveillance was lawful and did not violate the right to
personal liberty of a citizen as long as there was no illegal interference and it was unobstrusive
8 (1975) 2 SCC 148
9 AIR 1981 SC 760
MEMORANDUM FOR THE PETITIONER Page 14
subjected to arbitrary interference with his privacy, family, home or correspondence nor
to attack upon his honour and reputation. Everyone has the right to protection of the law
against such interference or attacks.
Article 17 of International Covenant of Civil and Political Rights (to which India is a
party) states No one shall be subjected to arbitrary or unlawful interference with his
privacy, family, home and correspondence, nor to unlawful attacks on his honour and
12 The constitution Of India
13 277 US 438,48S.Ct,564,72L.ED.944(1928)
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respect for his private and family life, his home and his correspondence; there shall be no
interference by a public authority except such as is in accordance with law and is
necessary in a democratic society in the interests of national security, public safety or the
economic well-being of the country, for the protection of health or morals or for the
protection of the rights and freedoms of others.
3. The guidelines which authorize the government to get the password of encrypted
I.
Article 20(3)14 provides citizen the right against self-incrimination,or a right against testimony
that would be against his interest.
TheHonble Supreme Court has held in State Of Gujarat V. Shyamlal Mohanlal Choksi15 that sect
ion 94 of the Criminal Procedure Code (old Code and presently Section 91) on its true constructi
on doesnt apply to an accused person. Thus, Sec.91 of Cr.PC cannot be used by the police for as
per the kind information from an accused in an online defamation case. Article 22 protects the
right of detained person. Here the Para Military forces arrested the people and have done a gross
violation of Criminal procedure. Thus, the guidelines are constitutionally invalid.
The dismissal of the state government of Pan-Goa by the Union Government is not
constitutionally valid.
The dismissal of the state government of Pan-Goa by the Central government is not valid
because Article 35616 is ab initio a very brutal and colonial provision which is inspired by
14 The Constitution Of India
15 (196 5 M.L.J. (Crl.) 417)
16 The Constitution Of India
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The dismissal of the state government of Pan-Goa is guided by the evil characteristics
of party-politics.
Our Constitution Makers expected that the extraordinary provisions such as implementation of
Article 35624 would be called into operation rarely, in extreme cases, as a last resort when all
alternative corrective measures fail. The power exercised as per Article 356 of the Constitution
comes under the ambit of judicial review.25 Judicial review of the Proclamation under Article
356(1) was first tested in State of Rajasthan v. Union of India case26.It can be assumed from the
facts of the case that the new Government which was formed by the Megoliyan Traditional
People Party by two third majorities has must been authoritative in its conduct of the
governmental duties. Also, since Pan-Goa state is guided by the western ideology and thought, it
is not so hard to believe that, there exists a tussle between the Union and State governments.
Here, it can be assumed from the facts of the case that, no satisfactory precautionary measures
regarding the re-establishment of Law and order in Pan-Goa was implemented. Even the
deployment of Central Para Military forces seems to be a part of well-planned political strategy.
It is very clear from the facts that the Union government has not only misused the provisions
under article(s)-355,356 and 365 of the Constitution but also, grossly misused the government
machineries such as Central Para Military forces and Central Investigation department.
NCRWC27submitted its extensive report in March 2002, in its analysis; the NCRWC stated that
in at least twenty out of the more than one hundred instances, the invocation of Article 356 might
be termed as a misuse. Justice V.R. Krishna Iyer termed Article 356 of the Constitution a live
poison that has been used by the party at the Centre to dismiss State Governments that are not to
its liking.
III.
The dismissal of the elected government of Pan-Goa is dismissal of the peoples will
of the state.
The dismissal of the elected government of Pan-Goa is not only dismissal of the peoples will but
also a conspiracy of the government to establish an authoritative rule in a democratic country.
The dismissal of Pan-Goa state government can be seen as a glaring example of shrinking of
24 The Constitution Of India
25 Minerva Mills and Others v. Union of India and Others A.I.R. 1980 SC 1789
26 State of Rajasthan v. Union of India, A.I.R. 1977 SC 1361.
27 National Commission to Review the Working of Constitution, established on February 22, 2000, on the basis of
a joint resolution of the Government of India, Ministry of Law, Justice and Company Affairs (Department of Legal
Affairs)
IV.
28 Nabam Rebia and Bamang Felix Vs. Deputy Speaker and Others. SC, Civil Appeal Nos. 6203-6204 of 2016
(Arising out of SLP(C) Nos.1259-1260 of 2016).
29 Union of India Vs. Harish Chandra Singh Rawat and Anr., Petition for Special leave to Appeal CC
7913/2016.
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