INTRA-MOOT COURT COMPETITION 2016

URN: A

TEAM CODE: J

IN THE HONBLE SUPREME COURT OF MEGOLIYANA

ORIGINAL WRIT JURISDICTION

W.P. (CIVIL) NO.OF 2016

UNDER ARTICLE 32 OF THE CONSTITUTION OF MENGOLIYANA

IN THE MATTER OF
Association for Citizens Welfare..PETITIONER

V.
Union of Megolia......RESPONDENT

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONER

MEMORANDUM FOR THE PETITIONER

Page 1

INTRA-MOOT COURT COMPETITION 2016

MEMORANDUM FOR THE PETITIONER

Page 2

INTRA-MOOT COURT COMPETITION 2016

TABLE OF CONTENTS
INDE X O F AUT H O RIT IES.......................................................................................................3 - 4
STATEME NT OF JU RI SDI CTI ON................................................................................................5
STATEME NT OF F AC T S............................................................................................................6 - 7
STATEME NT OF ISS U ES ....8
SUMMARY OF ARGUMENTS9

WRITTE N P LEA DIN G S .10 - 18

PRA YE R F O R RELIE F ... ..19

MEMORANDUM FOR THE PETITIONER

Page 3

INTRA-MOOT COURT COMPETITION 2016

INDEX OF AUTHORITIES
A. TABLE OF CASES
1. S.R. Bommai vs, Union of India, SC 1994 AIR 1918
2. Minerva Mills and Others v. Union of India and Others A.I.R. 1980 SC
1789
3. State of Rajasthan v. Union of India, A.I.R. 1977 SC 1361
4. 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).
5. Union of India Vs. Harish Chandra Singh Rawat and Anr., Petition for
Special leave to Appeal CC 7913/2016.
6. R. M. Malkani vs State Of Maharashtra, AIR 1973 SC 157
7. PUCL v. Union of India, AIR 1997 SC 568
8. Kharak Singh V. The State of U.P. ,(1964) 1 SCR 332
9. Malak Singh v State Of Punjab & Haryana, AIR 1981 SC 760
10. R. Rajagopal vs. State of Tamil Nadu, WP No. 422 of 1994 SC
11. Olm Stead vs. US, 277 US 438,48S.Ct,564,72L.ED.944(1928)
12. State Of Gujarat V. Shyamlal Mohanlal Choksi, (196 5 M.L.J. (Crl.) 417)
13. Bugdaycay [1987] AC 514, where Lord Bridge said at 531E-G
14. State of Bombay V. United motors Ltd. AIR 1953 SC 252
15. K.K. Kouchunni V. State of Madras AIR 1959 SC 725
16. Harbanslal Sahnia vs. Indian Oil Corpn. Ltd.,(2003) 2 SCC 107

B. TREATISES, BOOKS, REPORTS AND DIGESTS

1.
2.
3.
4.
5.
6.
7.
8.

Name of the Book, Treatise or Report with the Author or Publisher

Prof. M.V. Pylee, Constitutional Government In India, (Revised Edition, S.CHAND)
M.P. Jain, Indian Constitutional Law, ( Seventh Edition, Lexis Nexis)
V.N. Shuklas Constitution of India, Edited by Mahendra Pal Singh ( Twelfth Edition,
Eastern Book Publication)
P.M. Bakshi, The Constitution Of India, (Thirteenth Edition, Universal Law Publication)
Dr. J.N. Pandey, Constitutional Law of India, (Fifty first Edition, central Law Agency
The Convention on the Elimination of all Forms of Discrimination Against Women-1979
( CEDAW), Adopted by United Nations General Assembly
H.M. Seervai, Constituional Law of India, Volume Three, (Forth Edition, Universal Law
Publication, 2013)
United Nations Actions to Counter Terrorism and United Nations Global counter
Terrorism Strategy ( Fifth Review, July 2016)

MEMORANDUM FOR THE PETITIONER

Page 4

INTRA-MOOT COURT COMPETITION 2016

9. Indian Evidence Act- 1872, Bare Act, Universal Law Publication
10. Criminal Procedure Code-1973, Bare Act, Universal Law Publication
11. Information And Technology Act- 2000, Bare Act, Universal Law Publication
12. Report of Sarkaria Commission 1983
13. Report of 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)
14. International Covenant of Civil and Political Rights
15. Universal Declaration of Human Rights (1948)
16. European Convention on Human Rights states

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.

D. DYNAMIC LINKS AND

ABBREVIATION
1. www.indiankanoon.org
2. www.manupatra.com
3. www.livelaw.in

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
Page 5

INTRA-MOOT COURT COMPETITION 2016

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

Page 6

INTRA-MOOT COURT COMPETITION 2016

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.

MEMORANDUM FOR THE PETITIONER

Page 7

INTRA-MOOT COURT COMPETITION 2016

STATEMENT OF ISSUES
MEMORANDUM FOR THE PETITIONER

Page 8

INTRA-MOOT COURT COMPETITION 2016

The Appellant impugns three issues for consideration:
1. Whether the writ is maintainable or not ?
2. Whether the guidelines to install CCTV cameras near religious and public places are
constitutionally valid?
3. Whether the regulation which authorized the states to get the password of encrypted data
is Constitutionally valid?
4. Whether the dismissal of State Government of Pan Goa by Union Government is valid or
not?

MEMORANDUM FOR THE PETITIONER

Page 9

INTRA-MOOT COURT COMPETITION 2016

Summary of Arguments
1. Whether Writ is maintainable or not ?
It is humbly submitted that the writ petition filed by the petitioner is valid and maintainable
under article 32 of the Constitution. Writ petition is maintainable as existence of alternative
remedy is not a bar.
2. Whether the guidelines to install CCTV cameras near religious and public places
are constitutionally valid?
It is humbly submitted that the petitioners fundamental rights, namely right to privacy has been
violated by the respondents arbitrary use of power. The installation of the CCTVs at religious
places and beaches is constitutionally is not valid .The petition has been filed in time, question of
facts are not involved and fundamental right are sought be enforced.
3. Whether the guidelines which authorize the government to get the password of
encrypted data is constitutionally valid or not?
It is humbly submitted that the guidelines given by the centre is invalid. The investigation is
invalid.
4. Whether the dismissal of the state government of Pan-Goa by the Union
government, is valid or not?
It is humbly pleaded that 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 is
guided by the evil characteristics of party-politics. The dismissal of the elected government of
Pan-Goa is dismissal of the peoples will of the state.

MEMORANDUM FOR THE PETITIONER Page 10

INTRA-MOOT COURT COMPETITION 2016

WRITTEN PLEADINGS
It is humbly submitted that,

1. The Writ is maintainable.

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.

Alternative Remedy Not A Bar.

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

INTRA-MOOT COURT COMPETITION 2016

It was held in a case that rule of exclusion of writ jurisdiction by availability of an alternative
remedy is a rule of discretion and not one of compulsion. In an appropriate case in spite of
availability of the alternative remedy, the High Court may still exercise its writ jurisdiction in at
least three contingencies: (i) where the writ petition seeks enforcement of any of the
Fundamental Rights; (ii) where there is failure of principles of natural justice or, (iii) where the
orders or proceedings are wholly without jurisdiction or the vires of an Act and is challenged 4.

2. Installing CCTVs in public place is valid.

I.

The installation of the CCTVs at religious places and beaches is constitutionally

invalid .

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.

There is infringement of Right to Privacy.

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

INTRA-MOOT COURT COMPETITION 2016

Article 21. In R. M. Malkani vs State Of Maharashtra 5 , the petitioners voice had been recorded
in the course of a telephonic conversation where he was attempting blackmail. He asserted in his
defence that his right to privacy under Article 21 had been violated. The Supreme Court declined
his plea holding that The telephonic conversation of an innocent citizen will be protected by
Courts against wrongful or high handed' interference by tapping the conversation. The protection
is not for the guilty citizen against the efforts of the police to vindicate the law and prevent
corruption of public servants.
The final case that makes up the privacy quintet in India was the case of PUCL v. Union of
India6, a public interest litigation, in which the court was called upon to consider whether
wiretapping was an unconstitutional infringement of a citizens right to privacy. . When a
person is talking on telephone, he is exercising his right to freedom of speech and expression.,
the court observed, and therefore telephone-tapping unless it comes within the grounds of
restrictions under Article 19(2) would infract Article 19(1)(a) of the Constitution.

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
MEMORANDUM FOR THE PETITIONER Page 13

INTRA-MOOT COURT COMPETITION 2016

include a right to dignity. It held that an unauthorised intrusion into a person's home and the
disturbance caused to him thereby, is as it were the violation of a common law right of a man -an
ultimate essential of ordered liberty, if not of the very concept of civilization.
In a minority judgment in this case, Justice Subba Rao held that the right to personal liberty
takes in not only a right to be free from restrictions placed on his movements, but also free from
encroachments on his private life. It is true our Constitution does not expressly declare a right to
privacy as a fundamental right but the said right is an essential ingredient of personal liberty .
Every democratic country sanctifies domestic life; it is expected to give him rest, physical
happiness, peace of mind and security. This case, especially Justice Subba Raos observations,
paved the way for later elaborations on the right to privacy using Article 21.
Govind vs. State of Madhya Pradesh8, decided by a three Judge Bench of the Supreme Court, is
regarded as being a setback to the right to privacy jurisprudence. Here, the court was evaluating
the constitutional validity of Regulations 855 and
Regulations which provided for police surveillance of

856 of the Madhya Pradesh Police

habitual offenders which including

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

INTRA-MOOT COURT COMPETITION 2016

and within bounds. The Supreme Courts next major elaboration of the right to privacy in R.
Rajagopal vs. State of Tamil Nadu10. Here the court was involved a balancing of the right of
privacy of citizens against the right of the press to criticize and comment on acts and conduct of
public officials. The case related to the publication by a newspaper of the autobiography of Auto
Shankar who had been convicted and sentenced to death for committing six murders. In the
autobiography, he had commented on his contact and relations with various high-ranking police
officials disclosures which would have been extremely sensational. Sometime before the
publication, he appears to have been induced to write a letter disclaiming his authorship of the
autobiography. On this basis, the Inspector General of Prisons issued a letter forbidding the
newspaper from publishing the autobiography claiming, inter alia, that the publication of the
autobiography would violate the prisoners privacy. Curiously, neither Shankar himself, nor his
family were made parties to this petition.
The Court decided to presume, somewhat oddly, that he had neither written his autobiography
nor had he authorised its publication. The court then proceeded on this assumption to enquire
whether he had any privacy interests that would be breached by unauthorized publication of his
life story. The right of privacy of citizens was dealt with by the Supreme Court in the following
terms: (1) The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of
this country by Article 2111. It is a right to be let alone. None can publish anything concerning
the above matters without his consent - whether truthful or otherwise and whether laudatory or
critical. If he does so, he would be violating the right to privacy of the person concerned and
would be liable in an action for damages.
(2) The rule aforesaid is subject to the exception, that any publication concerning the aforesaid
aspects becomes unobjectionable if such publication is based upon public records including
court records. This is for the reason that once a matter becomes a matter of public record, the
right to privacy no longer subsists and it becomes a legitimate subject for comment by press and
media among others. We are, however, of the opinion that in the interests of decency [Article
10 WP No. 422 of 1994 SC
11 The Constitution Of India
MEMORANDUM FOR THE PETITIONER Page 15

INTRA-MOOT COURT COMPETITION 2016

19(2)]12 an exception must be carved out to this rule, viz., a female who is the victim of a sexual
assault, kidnap, abduction or a like offence should not further be subjected to the indignity of her
name and the incident being publicised in press/media.
On this reasoning, the court upheld that the newspapers right to publish Shankars
autobiography, even without his consent or authorisation, to the extent that this story was able to
be pieced together from public records. However, if they went beyond that, the court held, they
may be invading his right to privacy and will be liable for the consequences in accordance with
law. Importantly, the court held that the remedy of the affected public officials/public figures,
if any, is after the publication
It is being observed that the right to privacy in India is, at its foundations a limited right rather
than an absolute one. This limited nature of the right provides a somewhat unstable assurance of
privacy since it is frequently made to yield to a range of conflicting interests rights of paternity,
national security etc which happen to have a more pronounced standing in law.
In case of Olm Stead vs. US13, Brandeis, then a SC Justice, articulated a general constitutional
rights to be let alone,which has been described as the most comprehensive and valued right of
civilized people.
Moreover India is a party to several international conventions which protect the right to privacy .
They are :(a) International Concepts of Privacy
Article 12 of Universal Declaration of Human Rights (1948) states that No one shall be

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)
MEMORANDUM FOR THE PETITIONER Page 16

INTRA-MOOT COURT COMPETITION 2016

reputation
Article 8 of European Convention on Human Rights states Everyone has the right to

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.

data is constitutionally invalid.

There is self incrimination.

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.

4. The dismissal of the state government of Pan-Goa by the Union government is

constitutionally invalid.
I.

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
MEMORANDUM FOR THE PETITIONER Page 17

INTRA-MOOT COURT COMPETITION 2016

Section 93 of Government of India Act, 1935, which incarnate an imperial legacy. It was
referred to as a dead-letter provision by Dr.B.R. Ambedkar. Article 356 17 clause (3)
provides a check upon the power contained in clause (1) of the above mentioned provision
under the Constitution. It says that-every proclamation under this article shall be laid before
each house of the Parliament. Here it is clear from the facts of the case that, no such
proclamation was laid before each or any of the houses of the parliament. The Union
Government has not kept in mind the concept of co-operative federalism or the spirit and
object with which the article was enacted while dealing with the State of Pan-Goa and has
indeed grossly abused the power under Article 35618 on this occasion. The Sarkaria
Commission19 examined the Article 35620 and pointed out in the first instance that the use of
Article 356 has been rising with the passage of time. The Sarkaria Commission 21 noted that it
is not each and every departure from the provisions of the Constitution that attracts the said
Article but only a situation where it can be said that there has been a failure of the
Constitutional machinery. So, mere failure to maintain Law and order cannot be treated as
failure of the Constitutional machinery. In SR Bommai 22 case, it was laid down by the
Supreme Court that Art.356 is justified only when there is breakdown of constitutional
machinery and not administrative machinery. Not only this, prior to the dismissal of the PanGoa government, no report was submitted by the Governor. In SR Bommai vs. Union of
India23 case it was held by the court that Centre should give warning and at least one week
time to state to reply. So, it is a sheer misuse of the Article 356 of the constitution and hence,
it can be said that the dismissal of the state government of Pan-Goa by the Union
Government is not constitutionally valid.
17 Ibid.
18 Ibid.
19 Sarkaria Commission was appointed by the central government to examine the
relation and balance of power between state and central governments in the
country.
20 The Constitution Of India
21 Sarkaria Commission was appointed by the central government to examine the
relation and balance of power between state and central governments in the
country.
22 1994 AIR 1918
23 1994 AIR 1918
MEMORANDUM FOR THE PETITIONER Page 18

INTRA-MOOT COURT COMPETITION 2016

II.

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)

MEMORANDUM FOR THE PETITIONER Page 19

INTRA-MOOT COURT COMPETITION 2016

constitutional and democratic values at the hands of state. It is very shameful that the Union
government of the day has failed in taking prompt action and allowed constitutional values to go
down in drain. Recently in cases of Arunachal Pardesh28 and Uttarakhand29, we have seen that
how the spirit of democracy was harassed? It was only due to the intervention of the honorable
Supreme Court that, a legitimate elected democratic government was re-installed in both the
states.

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.
MEMORANDUM FOR THE PETITIONER Page 20

INTRA-MOOT COURT COMPETITION 2016

PRAYER
In light of the issues raised, arguments advanced and authorities cited it is most humbly
and respectfully submitted that this Honorable Supreme Court may adjudge and declare
that:
1. The Honble Court should accept the Writ and declares it as maintainable.
2. Hold the Union of Megoliya liable for the violation fundamental right of individual
liberty and right to privacy and held the guidelines to install CCTV cameras near
religious and public places constitutionally invalid .
3. Hold the regulation which authorized the states to get the password of encrypted data
as constitutionally invalid due to violation of Article 20 (3) of the Constitution of
Mengoliyana.
4. Hold the dismissal of State Government of Pan Goa by Union Government as
constitutionally invalid.
The court may also be pleased to pass any other order, which this Honorable Court may deem fit
in light of justice, equity and good conscience.

MEMORANDUM FOR THE PETITIONER Page 21