Anda di halaman 1dari 12

1

___________________________________________________________________________

TABLE OF CONTENTS

___________________________________________________________________________

1. List of Abbreviations..........................................................................................................2
2. Index of Authorities............................................................................................................3
2.1 Case Laws.....................................................................................................................3
2.2 Statutes and Guidelines.................................................................................................3
2.3 Books............................................................................................................................3
2.4 Websites........................................................................................................................3
3. Statement of
Jurisdiction.....................................................................................................4
4. Statement of Facts...............................................................................................................5
5. Issues...................................................................................................................................7
6. Summary of Arguments......................................................................................................7
7. Arguments Advanced
7.1 Whether there is any violation of fundamental right under article 21 of the
constitution of
India?........................................................................................................................8
8. Prayer................................................................................................................................12

________________________________________________________________

MEMORANDUM ON BEHALF OF THE RESPONDENT


2

LIST OF ABBREVIATIONS

________________________________________________________________

&And
AIR..All India Reporter
HC .High Court
Honble .Honourable
Ltd. .Limited
Ors.Others
Para.......................................................................Paragraph
P....Page
SC ....................................................................................................................Supreme Court
SCC.....................................................Supreme Court Case
SecSection
v.....Versus

________________________________________________________________

MEMORANDUM ON BEHALF OF THE RESPONDENT


3

INDEX OF AUTHORITIES

CASE LAWS

1. Francis Coralie Mullin vs Administrator Union of Delhi


2. Javed vs. State of Haryana
3. Narendrajit Singh vs UOI
4. Ramesharan vs UOI
5. Rupinder Singh Sodhi and Another vs Union of India and Others
6. Satwant Singh Sawhney v. D. Ramarathnam APO
7. State through CBI v. Narayan Waman Nerukar
8. State of Andhra Pradesh vs. Nallamili Rami Reddy

STATUTES

1. The Constitution of India, 1950


2. Motor Vehicles Act, 1988
3. Police Act, 1861

BOOKS
1. D.D.Basu, Commentary on the Constitution of India, Part 3, 8th Edition 2008
2. M.P.Jain , Indian Constitutional Law, Sixth Edition 2010, Lexisnexis
3. V.N.Shukla, Constitution of India, 12th edition, Eastern Book Company

WEBSITES
1. www.manupatra.com
2. www.westlaw.com
3. www.indiankanoon.com

________________________________________________________________

STATEMENT OF JURISDICTION

________________________________________________________________

MEMORANDUM ON BEHALF OF THE RESPONDENT


4

The counsel for the Respondent most humbly and respectfully submits to the jurisdiction of
this Honble High Court and accepts that the court has the power under Article 226 1 of the
Constitution of India to hear the present matter and adjudge accordingly.

________________________________________________________________

STATEMENT OF FACTS

________________________________________________________________

1. Mr. Sudhakaran is the son of Mr. Raghunandan met with an accident on 18 th Jan, 2012
on the Trivendrum and Chochin Highway. He sustained severe intestinal damage and
contusion of the liver as well as ancillary injuries. He was taken to the Apollo

1 Power of High Courts to issue certain writsNotwithstanding anything in Article 32 every High Court shall
have powers, throughout the territories in relation to which it exercise jurisdiction, to issue to any person or
authority, including in appropriate cases, any Government, within those territories directions, orders or writs,
including writs in the nature of habeas corpus, mandamus, prohibitions, quo warranto and certiorari, or any of
them, for the enforcement of any of the rights conferred by Part III and for any other purpose

MEMORANDUM ON BEHALF OF THE RESPONDENT


5

Hospital in Trivendrum at where the doctors advised Mr.Raghunandan to take his son
to Mayot Hospital in Chennai. They also advised Mr. Raghunandan that his son has to
undergo operation within twenty four hours else, his son will suffer paralysis and may
succumb.
2. The doctors at Apollo hospital fixed operation on 19 th Jan, 2012, informed
Mr.Raghunandan that his son has to travel with artificial life support system.
Mr.Raghunand an immediately contacted Mr.Avinash, the agent of Kingfisher Airlines
at Trivendrum for booking the flight tickets by explaining the condition of his son.
3. Mr.Avinash Airlines agent booked the tickets for Mr.Raghunandan in Kingfisher
Airlines from Trivendrum to Chennai via Bangalore transit ticket and also informed
him about the arrangements he made with the Kingfisher Airlines for carrying on the
life saving machine till Bangalore and mentioned that the further arrangements in the
connecting flight shall be made by the Kingfisher Airlines personnel.
4. Mr. Raghunandan along with his son who is with life support system boarded the
flight at 4 pm on 18th jan,2012.Exactly at 5.30 pm it reached the Bangalore airport
where Mr. Raghunandan was asked to wait for the jet airlines flight which is
scheduled to take off at 7 pm on the same day.
5. Around 6.45 pm jet airlines officials informed Mr. Raghunandan that as per the
conditions in cl.8 of jet Airlines the bearer of this certifies that he/she is in fit
condition to fly and is not suffering from any health problem which may be a
hindrance to his travel. So they cant board his son into the jet Airlines Flight.
6. Mr.Raghunandan pleaded with the Jet Airlines authorities to take note of the
seriousness of his son and requested them to allow their travel. Inspite of all the pleas
by Mr.Raghunandan, the officials refused to board his son into the Jet Airlines flight.

7. Mr.Raghunandan approached the Kidway hospital. The doctors of Kidway Super


Speciality Hospital informed Mr.Raghunandan that his sons condition is further
deteriorating and he needs to undergo operation within six hours and it can be done
only in Mayot Hospital in Chennai.
8. At 8.30 pm on 18thJanuary, 2012, Mr.Raghunandan finally decided to take his son by
road to Chennai with the help of doctors at Kidway Super Speciality Hospital in
Bangalore. Mr.Raghunandan started the journey to Chennai in the ambulance of
Mamata Super Speciality Hospital in Bangalore at 8.45pm on 18thJanuary, 2012.
9. After three hours of travelling, the vehicle was stopped by the Tamil Nadu police at
RTO check post for routine checkup at 11.45 pm on 18 thJanuary, 2012. During the
checkup, they found that the drivers driving license has expired a day before. So,

MEMORANDUM ON BEHALF OF THE RESPONDENT


6

they stopped the vehicle for further investigation. Mr.Raghunandan informed the
Inspector who is in charge there about the emergency situation and requested him to
allow the journey. Mr.Raghunandan also pleaded before the Inspector that his son has
got right to life a constitutional right guaranteed under Art. 21 of the Constitution.
The inspector refused to consider anything and said proper procedure is required to be
allowed.
10. The time they reached the hospital, the doctors informed Mr.Raghunandan that his son
was already attacked by a paralytic stroke and paralyzed one hour before. They also
informed him that he wont be able to move any limbs of his body below his neck and
also will remain in coma for the rest of his life.

________________________________________________________________

ISSUSED RAISED

________________________________________________________________

1. Whether there is any violation of fundamental right under article 21 of the


constitution of India?

MEMORANDUM ON BEHALF OF THE RESPONDENT


7

________________________________________________________________

SUMMARY OF ARGUMENTS

________________________________________________________________

1. Whether there is any violation of fundamental right under Article 21 of the


Constitution of India?

It is humbly submitted before this Honble court that there is no violation of fundamental
right under Article 21 because there is nothing to show that the act carried out by police was
in contravention with the procedure established by law.

The act of the police was to examine the vehicle which was a routine check, and in
consonance with the law, hence in accordance with the procedure established by law, and thus
there is no violation of Article 21.

___________________________________________________________________________

ARGUMENTS ADVANCED

ISSUE 1: Whether there is any violation of fundamental right under Article 21 of the
Constitution of India?

It is humbly submitted before the Honble court that there is no violation of any fundamental
right by the state.

MEMORANDUM ON BEHALF OF THE RESPONDENT


8

Act justified under Procedure Established by law

Article 21 of the Indian Constitution states that,

Protection of life and personal liberty No person shall be deprived of his life or
personal liberty except according to procedure established by law.

Art 21 is not an absolute right given to person against the state. It has certain restriction
which are attached to it. Procedure established by law as given in Art 21 is not any
ordinary law but should be an enacted law.

As held in the case of, Francis Coralie Mullin vs Administrator Union of Delhi 2, any
act which is done or carried out in accordance with the procedure laid down by any statute,
then there cannot be any violation of Art.21 as everything is done according to the law and
hence cannot be taken as infringing someones fundamental right, in this case, under
Art.21 of constitution of India.

Same was also laid in the case of, Satwant Singh Sawhney v. D. Ramarathnam APO3.

As held in the case of Ramesharan vs UOI4 , by the Honble Supreme Court that any
interference by police with the freedom of a person is infringement of Art.21 if it is not
authorized by the law. Therefore visit by police at night is infringement as it is not
authorized. If the act is authorized it cannot be claimed as a violation.

Thus, it can be inferred from the above cases that violation occurs only when there is
something done which is not authorized by law, but in this case, the act of the police was
authorized by the law.

Section 130 of Motor Vehicle Act, 1988 provides:

2 1981 AIR 746

3 1967 AIR 1836

4 1989 AIR SC 549

MEMORANDUM ON BEHALF OF THE RESPONDENT


9

Duty to produce licence and certificate of registration The driver of a motor


vehicle in any public place shall, on demand by any police officer in uniform, produce his
licence for examination. Provided that the driver may, of his licence has been submitted to,
or has been sized by, any officer or authority under this or any other Act, produce in lieu of
the licence a receipt or other acknowledgement issued by such officer or authority in
respect thereof an thereafter produce the licence within such period, in such manner as the
Central Government may prescribe to the police officer making the demand.

So the act of the police, i.e. stopping the vehicle and asking for the licence was an act that
was an enacted law under the Motor Vehicles Act, 1988 which is a central statute and thus
enacted by the legislature. So any act done by the police following the procedure
enshrined in the statute comes within procedure established by law.

In the case of Narendrajit Singh vs UOI5, it was held that, an accused could not be
released even if he got bail because of pendency of several cases in which production
warrants had been issued, it was held there was no violation of Article 21.

Similarly, in the present case here, even though it was an emergency but it was the duty of
the police to check the vehicle and especially when it was found that the driver license had
already expired. The fact cannot be ignored that, the license was expired and thus driving
the vehicle was illegal and the police needed to take the regular course of action according
to the procedure generally followed in such cases.

Obstruction of Movement on Highway: Legal

In the case of, Rupinder Singh Sodhi and Another vs Union of India and Others 6 it was
held that no one is entitled to barricade a highway so as to prevent members of the public

5 1971 AIR 306

MEMORANDUM ON BEHALF OF THE RESPONDENT


10

from using it but the police, whose duty it is to enforce law and order are entitled in the
discharge of that duty to impose reasonable restraints on the physical movement of
members of the public to protect public property and to avoid needless inconvenience to
other citizens in their lawful pursuits. But all such restraints on personal liberty, if at all,
have to be commensurate with the object which furnishes their justification.

Thus, in the present case also the obstruction of the vehicle for checking was the duty of
the police, and was within his rights when he stopped the ambulance for checking as it was
a part of his duty to enforce the law and order in a way which he was assigned to carry it
out. Thus it was perfectly reasonable and justified on part of police to stop and there arises
no dispute regarding illegality in stooping the vehicle on the highway for checking.

No Malafide Intention

According to section 23 of Police Act,1861 Duties of police-officers:- It shall be the duty of


every police-officer promptly, to obey and execute all orders and warrants lawfully issued to
him by any competent authority; to collect and communicate intelligence affecting the public
peace; to prevent the commission of offences and public nuisances; to detect and bring
offences to justice and to apprehend all persons whom he is legally authorised to apprehend,
and for whose apprehension sufficient ground exists; and it shall be lawful for every police-
officer, for any of the purposes mentioned in this section, without a warrant to enter and
inspect, any drinking-shop, gaming-house or other place of resort of loose and disorderly
characters.

Thus, it was in furtherance of this duty of the police that, he carried out the checking and
there was no other malafide intention of the policeman behind the act which he did and this is
very important to prove here because, while performing an act prescribed through procedure
established by law, the intention plays a major role.

In the case of, State through CBI v. Narayan Waman Nerukar7, SC held that while
considering the question of delay in trial, the court has a duty to see whether the prolongation

6 1983 AIR SC 65

7 AIR 2002 SC 2977

MEMORANDUM ON BEHALF OF THE RESPONDENT


11

was on account of any delaying tactics adopted by the accused and other relevant aspects
which contribute to the delay.
Hence, while considering any question of infringement while performing an act prescribed
through procedure established by law, the intention plays a major role. If the victim suffered
by mischief or any delaying tactics of an investigating agency or police only then can there be
violation. If there is no such malafide intention and is mere discharge of a regular duty, it is
not violation.

Individual Liberty cannot be stressed

Fundamental rights are guaranteed to person, but sometimes under some special
circumstances they are not applicable to each and every person in the same way. If some act
is infringing the right of any particular individual in some special circumstance, then it cannot
be said to be in contravention of the fundamental rights as a whole. Therefore, stress on
individual liberty cannot be laid down as the sole criteria for violation of Art 21.

In Javed vs. State of Haryana8, it was held that test of individual liberty cannot be stressed
so as to give a go-bye to justice and established duties.

Also in case of, State of Andhra Pradesh vs. Nallamili Rami Reddy 9, it was held that,
merely because A.P. Charitable & Hindu Institution & Endowment Act results in some
hardships to some tenant, could not be held as deprivation of life.

Therefore, it can be inferred here that, merely because some act/statute results in loss of
personal liberty of a particular individual, in this case the petitioner, therefore cannot claim
violation of fundamental right under Article 21.

________________________________________________________________________

8 Writ Petition (civil) 302 of 2001

9 Appeal (civil) 3694-3748 of 1996

MEMORANDUM ON BEHALF OF THE RESPONDENT


12

PRAYER

________________________________________________________________________

Wherefore it is prayed, in light of the issues raised, arguments advanced, and authorities
cited, that this Hon'ble Court may be pleased to:

Declare that there was no violation of Article 21 and therefore the State is not liable to
pay compensation of any kind to the petitioners.

And Pass any other Order, Direction, or Relief that it may deem fit in the Best Interests of
Justice, Fairness, Equity and Good Conscience.

For This Act of Kindness, the Appellant Shall Duty Bound Forever Pray.

Sd/-

Counsel on behalf of Respondent

MEMORANDUM ON BEHALF OF THE RESPONDENT