COMPETITION2016
TC-856
BEFORE
STATE
(RESPONDENT)
To,
THE HONBLE CHIEF JUSTICE
AND OTHER COMPANION
JUDGES OF HIGH COURT OF
BORISSA
TABLEOF CONTENTS
ABBREVIATION ................................................................................................................................. 1
INDEXOF AUTHORITIES ................................................................................................................. 2
CASES................................................................................................................................................ 2
PRIMARY AUTHORITIES: ........................................................................................................... 3
STATEMENTS OF FACTS................................................................................................................. 5
A.
B.
C.
II.
A.
B.
C.
IV.
A.
B.
This Hon'ble Court has an obligation to entertain the instant petition ................................ I
Writ petition is maintainable when there is infringement of fundamental rights ............... II
The use of police force amounts to arbitrary action protected by Art. 14 of the constitution
V
There Has Been Violation of Fundamental Right Under Art. 21 Of The Constitution ...... V
THE DEFENDANT IS LIABLE FOR THE COMPENSATION.................................... VI
PRAYER ................................................................................................................................................ IX
ABBREVIATION
ABBREVIATION
TERM
S.
Section
&
And
Paragraph
ACJ
Art.
Article
AIR
Cr.PC
Hon'ble
Honourable
Ed.
Edition
H.P.
Himachal Pradesh
I.P.C.
M.P.
Madhya Pradesh
SC
Supreme Court
Ltd.
Limited
Ors.
SCC
Others
SCR
U.P.
Uttar Pradesh
U.O.I.
Union of India
V.
Versus
WP
Writ Petition
1|Page
INDEXOF AUTHORITIES
CASES
PRIMARY AUTHORITIES:
1. D.D BASU, COMMENTARY ON CONSTITUTIONAL LAW OF INDIA, VOLUME
2.
2. V.N SHUKLAS CONSTITUTION OF INDIA, MAHENDRA P. SINGH, 326
(12TH EDITION 2013)
WEB REFERENCES:
1.
WWW.HEINONLINE.ORG (HEINONLINE)
3.
2.
4.
5.
6.
WWW.JSTOR.ORG (JSTOR)
WWW.MANUPATRAFAST.COM (MANUPATRA)
WWW.SCCONLINE.CO.IN (SCC ONLINE)
JOURNAL
3|Page
STATEMENTOF JURISDICTION
That as the Municipal laws of Borissa is in pari materia to the Laws of India hence, the
Petitioner has appeared before the Honble High Court of Borissa under Art.226 of the
Constitution of India,1950 by preferring this instant Writ Petition on behalf of the ABAPTA
and this Honble Court has ample jurisdiction to entertain the instant subject-matter.
4|Page
STATEMENTS OF FACTS
under Society Registration Act. In 2015, they raised the issue of regularization of 1500
such ad-hoc teachers. They sought permission from the Police Commissioner of Borissa
for organizing a relay hunger strike near State Assembly demanding for the same for
On end from 5th October 2015, the ABAPTA went for a relay hunger strike, resulting in
agitation. On 9th October, the Leader of the Opposition (political party), seizing the
opportunity came before the dharna place and mobilized the protesting teachers against
After this, the Government withdrew the permission and a prohibitory order was imposed
under Section 144 of Cr.P.C 1973. The Police Commissioner next day, came before the
agitating teachers and tried to convince the leaders and the sitting teachers to withdraw
There was a police crackdown at night on 10th October, 2015 asking the agitating
teachers to leave the place at midnight itself. However, the police evicted the sleeping
persons forcibly by caning and use of tear gas which resulted injuries to various agitating
The ABAPTA decided to file a writ petition in High Court of Borissa claiming
compensation and damages against the Government of Borissa under Article 300 (1) of
the Constitution of India, 1950 under common law principle of vicarious liability. The
Government of Borissa defended the case by pleading sovereign immunity and claimed
doctrine of contributory negligence.
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STATEMENT OF ISSUES
ISSUE I
WHETHER THE WRIT PETITION UNDER ARTICLE 226 OF THE
CONSTITUTION OF INDIA IS MAINTAINABLE OR NOT?
ISSUE II
WHETHER THE POWER UNDER S. 144 OF CRPC HAS BEEN MISUSED?
ISSUE III
WHETHER THE DEFENDANT IS LIABLE FOR COMPENSATION TO THE
PETITIONER?
6|Page
SUMMARYOF ARGUMENTS
I.
THE
WRIT
PETITION
MAINTAINABLE.
FILED
BEFORE
THE
HIGH
COURT
IS
It is humbly submitted that the writ petition filed by the petitioner is maintainable.
alternative remedy by filing money suit in civil court would not oust the Petitioner from
filing the writ petition as fundamental rights have been infringed.
II.
to security or there is a need for speedy remedy. Firstly, it is settled law that the order
issued under section 144 must prescribe the material facts and cannot be used for dangers
which are foreseeable, but only in cases of imminent dangers. Secondly, the use of police
fundamental right is infringed, he has a public law remedy of seeking compensation from
the state and this public law remedy is in addition to private law remedy by way of a civil
suit for damages. Secondly, the petitioner is also liable under the principle of vicarious
liability.
7|Page
ARGUMENTS ADVANCED
I. THE WRIT PETITION FILED IS MAINTAINABLE BEFORE THE HIGH
COURT
(1.) The writ petition filed by the Petitioner is maintainable, as this Hon'ble Court has a
constitutional duty to entertain the instant petition [A].Further, there is infringement of
fundamental rights [B] and it is independent of any alternative remedy [C].
appropriate orders and writs for the enforcement of any of the rights conferred by Part III of
the Constitution or for any other purpose.2
(3.) The petitioner is a society registered under Society Registration Act, which confers
them a legal personality within the jurisdiction of state. Whenever there is infringement of a
fundamental right, no question of delay arises for consideration. 3 Article 226 does not
describe the persons who are entitled to enforce the fundamental right by filing a writ petition
before the High Court. So, in the absence of any such guide, the court might apply the
English certiorari concept of "person aggrieved".
(3.) Any person whose fundamental rights have been infracted will be at liberty to move the
Court. The fundamental rights of the Petitioner have been violated under Art. 14, Art.
19(1)(a), (b) and Art. 21 and is the person aggrieved in the instant. Also, under the legal
maxim audi alterem partem the Honble High Court has the jurisdiction of hearing and
deciding this matter as it concerns the issue of violation of fundamental rights. Consequently,
Durga Das Basu, Commentary on the Constitution of India (Nagpur: LexisNexis Butterworth Wadhwa, Vol. 6,
8th ed., 2012) p. 6719
2
Udai Bhan Singh v. State of U.P. & Ors., AIR 1974 All 202
3
Haji Suleman Yusuf Bhat v. Custodian of Evacuee Property, AIR 1954 Madh B 173.
1
I|Page
it is submitted that a refusal to entertain the instant petition would be inconsistent with the
aforesaid obligation.
infringement. The action of the police who is an instrument of Petitioner4, is infringing the
rights of freedom of speech, peaceful assembly and life as enshrined by the Constitution
under Articles 19(1)(a), 19(1)(b) and 21 respectively. Further, there was also violation of
petitioner's Fundamental Right under Art. 14, caused by the misuse of power by the Police
Officials.
(5.) It is urged that the prohibitory orders are in total violation Art. 19 (1) (a)and (b) and the
same have been issued without any basis and thereby tantamount to abuse of the process of
the mandate contained in S. 144 of Cr.P.C. Freedom of speech, right to assemble and
demonstrate by holding dharnas and peaceful agitations are the basic features of a democratic
system.5
(6.) Thus, imposing a prohibitory order under S. 144 of Cr.P.C amounts to gross violation of
fundamental rights of the Petitioners. Rather, the police should evolve a mechanism to ensure
law and order without infringing the fundamental right to Assembly and other basic rights
guaranteed by the Constitution.6
(7.) The Police Officials act of forcibly evicting sleeping people destroys the essence of
protection of life and personal liberty under Art. 21. Right to sleep forms an essential part of
Article 21 which guarantees protection of life and personal liberty to all. Hence as sleep
forms an essential part of living a peaceful life, it is a fundamental right. The term "life" as
enshrined in Art.21 of the Constitution has received very liberal interpretation at the hands of
the Supreme Court, where the Hon'ble Supreme Court has gone to the extent of declaring that
Alok Mittal & Ors. v. Government Of Haryana & Ors., 2008 (98) SLJ 369 CAT
In Re: Ramlila Maidan Incident Dt. 4/5. 06.2011 v. Home Secretary & Ors., (2012) 5 SCC 1
6
K. Thiagarajan @ Thozhar Thaigu v. The Commissioner Of Police, W.P No. 26930 of 2013
4
5
II | P a g e
even right to sleep is a fundamental right falling within the purview of Art. 21 of the
Constitution of India.7
(8.) It is humbly submitted that the action of the police officials was arbitrary and
unreasonable and thus violation of Art. 14 of the Constitution. The absence of arbitrary power
is the first essential of the rule of law upon which our whole constitutional system is
based. 8 In a system governed by rule of law, discretion, when conferred upon executive
authorities, must be confined within clearly defined limits. 9 Every state action must be
informed by reason and it follows that an act unimproved by reason is per se arbitrary.10 A
notice to evacuate given at around midnight cannot be said to be reasonable. Also, a sleeping
crowd cannot be a threat, so use of tear-gas and caning was totally arbitrary and
unreasonable. Therefore it is submitted that the police officials acted arbitrarily and the writ
remedy can be invoked.
court11 as it is a process that the court chooses to opt out of convenience and discretion12.
Under special circumstances the High Court may grant writ remedies to a Petitioner even
with the existence of an alternative remedy13.
(10.) Where public functionaries are involved and the matter relates to the violation of
Fundamental Rights or the enforcement of public duties, the remedy would still be available
under the Public Law notwithstanding that a suit could be filed for damages under Private
Law.14 Thus the existence of an alternative remedy is no ground for refusing writ, where
there has been a contravention of fundamental right.15
III | P a g e
(11.) Therefore, it is humbly submitted by the Petitioner, that the writ petition filed would be
maintainable.
judicial, is amenable to writ jurisdiction under Art. 32 and 226 of the constitution, if it
violates fundamental right.16 The power under S.144 of Cr.P.C has been misused, as S. 144 of
CrPC applies to cases of imminent dangers [A]. Further, the use of police force amounts to
arbitrary action protected by Art. 14 of the Constitution [B] and there has been violation of
fundamental right under Art. 21 of the Constitution [C].
of public tranquillity, or riot, or affray.17 It is humbly submitted that the Petitioner sought
permission from the police authority for organizing a relay hunger strike and was thus
granted a conditional no objection certificate for the same. The relay hunger strike was to
bring to the attention of Petitioner, the regularization of 1500 ad-hoc teachers.
(14.) The provisions of S. 144, CrPC are meant to be used only in the grave circumstances
for maintenance of public place.18 The gist of the action under this section is the urgency of
the situation, its efficacy in the likelihood of being able to prevent some harmful occurrences.
A mere statement by the Magistrate that he is satisfied that there is every possibility for
serious breach of peace between parties as well as public tranquillity is not sufficient to
exercise power under S. 144(1) and 144(2) CrPC.19
IV | P a g e
B. The use of police force amounts to arbitrary action protected by Art. 14 of the
constitution
(15.) The principle of reasonableness and rationality which is legally as well as
of executive power without making of law. 20 The public functionaries should be duty
conscious rather power charged.21 Its actions and decisions which touch the common man
have to be tested on the touchstone of fairness and justice.22 That which is not fair and just is
unreasonable. And what is unreasonable is arbitrary. An arbitrary action is ultra vires. The
prohibitory order under S. 144 of CrPC does not in any way allow the police to enforce it in
an unreasonable manner. Their action is termed unreasonable as eviction orders at midnight,
when the crowd is sleeping and they are no threat, use of caning and tear gas on such crowd,
who is in a semi-conscious state, the police seems to have misused their power arbitrarily. It
would have been reasonable if the police ordered the crowd to vacate the place next morning
and if then the crowd was violent, then use force. In any country, especially a democracy, the
balancing of interests must be ensured and no organ of the state should have unlimited or
unguided powers. This is applicable equally to the public as well to the police. The police in
this case had discretionary and unguided powers which led to violation of fundamental right
of Petitioner. Discretion means sound discretion guided by law or governed by known
principles of rules, not by whim or fancy or caprice of the authority.23
liberty by the State as defined in Article 12. Under the canopy of Article 21 so many
rights have found shelter, growth and nourishment. Thus, the bare necessities, minimum and
Ramana Dayaram Shetty v. The International Airport Authority of India Ors. AIR 1979 SC 1628.
Mahesh Chandra v. Regional Manager, U.P. Financial Corporation & Ors., (1992) SCR (1) 616
22
Ibid.
23
Som Raj v. State of Haryana, AIR 1990 SC 1176
20
21
V|Page
basic requirements that is essential and unavoidable for a person is the core concept of right
to life. Similarly, Sleep is essential for a human being to maintain the delicate balance of
health necessary for its very existence and survival. Sleep is, therefore, a fundamental and
basic requirement without which the existence of life itself would be in peril. A citizen has a
right to sound sleep because it is fundamental to life and falls within the purview of Art. 21.24
IV.
rights. [A] Further, they are also liable under Art. 300(1) of the Indian constitution which
states the common law principle of vicarious liability. [B]
sowed in Khatri25, Sant Bir26 and Veena Sethi27, which sprouted with such a vigorous growth
that it finally enabled the Court to hold that the State is liable to pay compensation. This
of speech and expression enshrined in Art. 19 (1) (a) of Constitution, under freedom of
peaceful assembly without arms enshrined in Art. 19 (1) (b) of constitution, by arbitrary
action of police used unreasonably which is violative of Art. 14 of Constitution, under right
to sleep which is violative of Art. 21 enshrined in Constitution.
(19.) A claim in public law for compensation justifies award of monetary compensation for
contravention of fundamental rights guaranteed by the Constitution, when that is the only
Supra, Note 5.
Khatri v. State of Bihar, (1981) 1 SCC 627
26
Sant Bir v. State of Bihar, (1982) 3 SCC 131
27
Veena Sethi v. state of Bihar, (1982) 2 SCC 583
28
(1983) 4 SCC 141
24
25
VI | P a g e
practicable mode of redress available for the contravention made by the State or its servants
in the purported exercise of their powers.29
B. The Petitioner is liable under the common law principle of vicarious liability
(20.) The legal basis of liability of the respondent comes under Art. 300(1) of the Indian
constitution. It provides a platform for state to sue or be sued as juristic personality. It is well
settled that ambit of Article 300 included tortious liability of State and its scope is not limited
to suit or right to one in respect of contractual liability only. The doctrine of vicarious
liability is a rule of responsibility by which the defendant will be found liable for the torts of
another, without proof of fault.30 The whole idea of vicarious liability of state is based on 3
principles, Respondent superior, Qui facit per alium facit per se and socialisation of
compensation.
(21.) It has been stated that there is no justification in principle or in public interest that the
state should not be held vicariously liable for tortious act of its servants. 31 The vicarious
liability of state is linked with the negligence of its officers.32 The courts now interpret the
of those functions.33 In this case, when the defendant claim against petitioners, the doctrine of
contributory negligence, to an extent they admit, the negligence of police officials in taking
due care of petitioners. Thus, it is humbly submitted that the petitioner are liable for
compensation under the principle of vicarious liability.
(22.) The old distinction between sovereign and non-sovereign functions should no longer
be invoked to determine the liability of a state.34 The expression king can do wrong has now
been interpreted to mean that king has no legal power to do wrong. 35 The defence of
sovereign immunity which is implicit to Constitution of India Art. 300 (1) is inapplicable and
alien to the concept of guarantee of fundamental rights, therefore, there is no question of such
Nilabati Behera v State of Orissa & Ors., (1993) SCR (2) 581
Ken Oliphant, The Law of Tort, (LexisNexis Butterworths, 2nd ed., 2013) p. 87.
31
State of Rajasthan v. Vidhyawati, AIR 1962 SC 933
32
Halsbury's Laws of India, Administrative Law, LexisNexis Butterworths, Vol. 1, 2008, p. 005.227.
33
Halsbury's Laws of India, Tort, LexisNexis Butterworths, , Vol. 29(1), 2008, p. 127.
34
Dr. R. K. Bangia, Law of Torts, (Haryana: Allahabad Law Agency, 22nd ed., 2011) p. 65
35
A S Mittal v. State of Uttar pradesh, (1989) 3 SCC 223
29
30
VII | P a g e
36
VIII | P a g e
PRAYER
In light of facts presented, questions raised, arguments advanced and authorities cited,
Counsels for the Petitioners most humbly pray before this Honble Court, to adjudge and
declare that:
The Petitioners thus prays for the following relief from the court:
1. Issue a writ of mandamus against the Government of Borissa.
2. Award compensation to ABAPTA as there has been gross violation of their legal and
fundamental rights.
The Court being satisfied, may also make any such order as it may deem fit in the light of
Justice, Equity and Good conscience.
And for this act of kindness the Petitioners shall as duty bound ever humbly pray.
Respectfully submitted,
Counsels Appearing for Petitioners
IX | P a g e