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TABLE OF CONTENTS

Sr.No. Contents Page.No.

1.
PART-A 6 -19
Introduction to Drafting, Pleading And Conveyancing
2.
PART-B
20-41
Moot Court Memorial on the Behalf of Petitioner
3.
PART-C 42-58
Moot Court Memorial on the Behalf of Respondent
4.
PART-D 59-65
Leading Case
5.
66-74
PART-E
Court Visit
6.
Bibliography 75
PROJECT PROPOSAL

PART-A

DRAFTING, PLEADING AND CONVEYANCING

INTRODUCTION
Introduction – Drafting, Pleading And Conveyancing

1. DRAFTING – ITS MEANING

Drafting may be defined as the synthesis of law and fact in a language form [Stanley
Robinson: Drafting Its Application to Conveyancing and Commercial Documents (1980);
(Butterworths); Chapter 1, p.3]. This is the essence of the process of drafting. All three
characteristics rank equally in importance. In other words, legal drafting is the crystallization
and expression in definitive form of a legal right, privilege, function, duty, or status. It is the
development and preparation of legal instruments such as constitutions, statutes,
regulations, ordinances, contracts, wills, conveyances, indentures, trusts and leases, etc.

The process of drafting operates in two planes: the conceptual and the verbal. Besides
seeking the right words, the draftsman seeks the right concepts. Drafting, therefore, is first
thinking and second composing.

Drafting, in legal sense, means an act of preparing the legal documents like agreements,
contracts, deeds etc.

A proper understanding of drafting cannot be realised unless the nexus between the law,
the facts, and the language is fully understood and accepted. Drafting of legal documents
requires, as a pre-requisite, the skills of a draftsman, the knowledge of facts and law so as to
put facts in a systematised sequence to give a correct presentation of legal status, privileges,
rights and duties of the parties, and obligations arising out of mutual understanding or
prevalent customs or usages or social norms or business conventions, as the case may be,
terms and conditions, breaches and remedies etc. in a self-contained and self-explanatory
form without any patent or latent ambiguity or doubtful connotation. To collect, consolidate
and co-ordinate the above facts in the form of a document, it requires serious thinking
followed by prompt action to reduce the available information into writing with a legal
meaning, open for judicial interpretation to derive the same sense and intentions of the
parties with which and for which it has been prepared, adopted and signed.

6.
2. CONVEYANCING — ITS MEANING

Technically speaking, conveyancing is the art of drafting of deeds and documents whereby
land or interest in land i.e. immovable property, is transferred by one person to another; but
the drafting of commercial and other documents is also commonly understood to be
included in the expression.

Mitra’s legal and commercial dictionary defines “conveyance” as the action of conveyancing,
a means or way of conveyancing, an instrument by which title to property is transferred, a
means of transport, vehicle. In England, the word “conveyance” has been defined differently
in different statutes. Section 205 of the Law of Property Act, 1925 provides that the
“conveyance includes mortgage, charge, lease, assent, vesting declaration, vesting
instrument, disclaimer, release and every other assurance of property or of any interest
therein by any instrument except a will”. “Conveyance”, as defined in clause 10 of Section 2
of the Indian Stamp Act, 1899, “includes a conveyance on sale and every instrument by
which property, whether movable or immovable, is transferred inter vivos and which is not
otherwise specifically provided by Schedule I” of the Act.” Section 5 of the Transfer of
Property Act, 1882 (Indian) makes use of the word “conveyance” in the wider sense as
referred to above.

Thus, conveyance is an act of conveyancing or transferring any property whether movable


or immovable from one person to another permitted by customs, conventions and law
within the legal structure of the country. As such, deed of transfer is a conveyance deed
which could be for movable or immovable property and according to the Transfer of
Property Act, 1882, transfer may be by sale, by lease, by giving gift, by exchange, by will or
bequeathment. But acquisition of property by inheritance does not amount to transfer
under the strict sense of legal meaning.

7.
3. PLEADING — ITS MEANING

The present day system of pleadings in our country is based on the provisions of the Civil
Procedure Code, 1908 supplemented from time to time by rules in that behalf by High
Courts of the States. There are rules of the Supreme Court and rules by special enactments
as well.

For one, words ‘plaints’ and ‘complaints’ are nearly synonymous. In both, the expression of
grievance is predominant. Verily, when a suitor files a statement of grievance he is the
plaintiff and he files a ‘complaint’ containing allegations and claims remedy. As days passed,
we have taken up the word ‘Plaint’ for the Civil Court and the word ‘Complaint’ for the
Criminal Court.

Order 6, R. 1 of Civil Procedure Code (C.P.C.) defines ‘pleading’. It means either a plaint or a
written statement.’

With the passing of time written pleadings supplanted archaic oral pleadings. When reduced
to writing the scope of confusion, for obvious reasons, was made narrower.

In this we find the object of a pleading which aims at ascertaining precisely the points for
contention of the parties to a suit. The rules of pleading and other ancillary rules contained
in the Code of Civil Procedure have one main object in view. It is to find out and narrow
down the controversy between the parties. The function of pleadings is to give fair notice of
the case which has to be met so that the opposing party may direct his evidence to the issue
disclosed by them. Procedural law is intended to facilitate and not to obstruct the course of
substantive justice. Provisions relating to pleadings in civil cases are meant to give each side
intimation of the case of the other so that it may be met, to enable courts to determine
what is really at issue between parties, and to prevent deviations from the course which
litigation on particular causes of action must take (Ganesh Trading v. Motiram ,AIR 1970 SC
480). Necessarily, a pleading is accurate only when stripped of verbosity it pinpoints
succinctly the plaintiff’s grievances giving him the right to sue for the desired relief, or when
it briefly sets out the defendant’s defence. When so done, there would be hardly any scope
left to beat about the bush or to take the other party by surprise.

Pleadings should be read not by the piecemeal but as a whole and should be liberally
construed. Every venial defect should not be allowed to defeat a pleading, for a plaintiffs
case should not be defeated merely on the ground of some technical defect in his pleadings
provided he succeeds on the real issues of the case. It has been held: “Rigid construction of
the law of pleadings was inappropriate and not calculated to serve the cause of justice for
which the law of procedure was largely designed (AIR 1969 Del.120). This should, of course,
not be taken as an excuse for pleadings extremely lax and irrelevant, argumentative and
inaccurate.”

8.
In construing the plaint, the court has to look at the substance of the plaint rather that its
mere form. If, on the whole and in substance, the suitor appears to ask for some relief as
stated, the court can look at the substance of the relief. “Pleadings have to be interpreted
not with formalistic rigour but with latitude of awareness of low legal literacy of poor
people.”

Coming to construction of pleadings, Sarkaria, J held: “A pleading has to be read as a whole


to ascertain its import. It is not permissible to cull out a sentence or a passage and to read it
out of the context in isolation. Although it is the substance and not mere the form that has
to be looked into, the pleading has to be construed as it stands without addition or
subtraction of words, or change of its apparent grammatical sense. The intention of the
party concerned is to be gathered, primarily, from the tenor and term of his pleading taken
as a whole. (Udhav Singh v. Madhava Rao Scindia, AIR 1976 SC744).

Fundamental rules of pleadings

The fundamental rule of pleadings is contained in provisions of O. 6, R. 2 of C.P.C. which


enjoins:

(1) “Every pleading shall contain only, a statement in a concise form of the material facts
on which the party pleading relies for his claim or defence, as the case may be, but
not the evidence by which they are to be proved.
(2) Every pleading shall, when necessary, be divided into paragraphs, numbered
consecutively, each allegation being, so far as is conveniently, contained in a
separate paragraph.
(3) Dates, sums and numbers shall be expressed in a pleading in figures as well as in
words.”

To quote the Earl of Halsbury: “The sole object of it is that each may be fully alive to the
questions that are about to be argued in order that they may have an opportunity of
bringing forward such evidence as may be appropriate to the issues.” The rules of pleading
and other ancillary rules contained in the Code of Civil Procedure have one main object in
view. It is to find out and narrow down controversy between the parties.

“The pleadings are not to be considered as constituting a game of skill between the
advocates. The) ought to be so framed as not only to assist the party in the statement of his
case but the court in its investigation of the truth between the litigants”.

9.
The pleading shall contain:

(i) facts only, then again, material facts;


(ii) not law;
(iii) not evidence; and
(iv) deficiency in pleading.
(v) immaterial facts to be discarded.

i) Material facts: A pleadings shall contain only material facts. Material facts are the
entirety of facts which would be necessary to prove to succeed in the suit. Any fact which is
not material should be avoided. Slackness in pleadings is unfair both to the court in which
they are filed and also to the litigants. Material facts should be pleaded concisely. There is
hardly any scope for showing literary genius in a pleading.

Order 6, R. 2, C.P.C. should be read with O. 6, R. 4(c). When commencing a suit, the plaintiff
is required to state only material facts, but such facts must constitute his cause of action as
well. Absence of material facts will put the party to discomfiture, for no amount of evidence
can be taken into consideration or regarded as sufficient in proof of any fact if specific
mention of it is not made in the pleadings. Therefore, if a party omits to state a material
fact, he will not be allowed to give evidence of the fact at the trial unless the pleading is
amended under O. 6, R. 17, C.P.C. The rule is based mainly on principles that no party
should be prejudiced by change in the case introduced by this method. No relief can be
granted on facts and documents not disclosed in the plaint.

It is often noticed that during the trial of a suit, some fact is sought to be introduced in
evidence which does not find mention in the plaint or in the written statement, as the case
may be. Then follows a heated parley when the court intervenes and rejects any attempt of
introduction of any new fact. To avoid discomfiture, the pleading should be carefully drafted
not to miss any material fact which may subsequently be found to be so material as to
decide the fate of the case this or that way.

(ii) Not law: In a pleading, there is no scope of pleading a provision of law or conclusion of
law. It is the intention of the framers of the Code that a pleading should state facts, and the
position as in law shall be inferred if such facts are capable of raising any legal inference.
The pleading should present facts in such a way that those would irresistibly and
spontaneously draw a legal inference. Herein lies the art of pleading. To find out the law is
the duty of the court. Legal effects are not to be stated by the party. In India, as in England,
the duty of a pleader is to set out the facts upon which he relies and not the legal inference
to be drawn from them. Likewise the conclusion of law or a mixed question of law and fact
should not be pleaded.

10.
(iii) Not evidence: In like manner evidence has to be avoided in pleadings. We have noticed
the wording of the rule of O. 6, R. 2 to wit, a statement in a concise form of the material
facts on which the party pleading relies for his claim or defence as the case may be but not
the evidence by which they are to be proved.

A pleading should not contain facts which are merely evidence to prove the material facts.

(iv) Immaterial facts to be discarded: Unnecessary details are the facts which are not
material and, therefore, should be discarded.

(v) Deficiency in pleading: Parties are related to each other and know everything. No
element of surprise has been caused to the other party. Parties understood the case and led
evidence accordingly. Deficiency in pleading would not affect case of the plaintiff [ Kailash
Chandra v. Vinod, AIR 1994 NOC 267 (MP)].

GENERAL PRINCIPLES OF DRAFTING ALL SORTS OF DEEDS AND CONVEYANCING AND


OTHER WRITINGS

Drafting of legal documents is a skilled job. A draftsman, in the first instance, must ascertain
the names, description and addresses of the parties to the instrument. He must obtain
particulars about all necessary matters which are required to form part of the instrument.
He must also note down with provision any particular directions or stipulations which are to
be kept in view and to be incorporated in the instrument. The duty of a draftsman is to
express the intention of the parties clearly and concisely in technical language. With this end
in view, he should first form a clear idea of what these intentions are .

When the draftsman has digested the facts, he should next consider as to whether those
intentions can be given effect to without offending against any provision of law. He must,
therefore, read the introductory note, or, if time permits, the literature on the subject of the
instrument. A corporate executive, therefore, must note down the most important
requirements of law which must be fulfilled while drafting complete instrument on the
subject. Validity of document in the eye of law cannot be ignored and at the same time the
facts which should be disclosed in the document cannot be suppressed. Nothing is to be
omitted or admitted at random. Therefore, knowledge of law of the land in general and
knowledge of the special enactments applicable in a particular situation is an essential
requirement for a draftsman to ensure that the provisions of the applicable law are not
violated or avoided.

11.
For example, in cases where a deed to be executed by a limited company, it is necessary to
go into the question as to whether the company has got power or authority under its
memorandum to enter into the transaction. A limited company can do only that much
which it is authorised by its memorandum.

Further, a company being a legal entity, must necessarily act through its authorised agents.
A deed, therefore, should be executed by a person duly authorised by the directors by their
resolution or by their power of attorney.

It is also to be ensured that the format of documents adopted adheres to the customs and
conventions in vogue in the business community or in the ordinary course of legal
transactions. For any change in the form of such document, use of juridical and technical
language should invariably be followed. The statements of negatives should generally be
avoided. The order of the draft should be strictly logical. Legal language should be, to the
utmost possible extent, precise and accurate. The draft must be readily intelligible to
laymen. All the time the draftsman must keep his eye on the rules of legal interpretation
and the case-law on the meaning of particular words and choose his phraseology to fit
them.
Document should be supported by the schedules, enclosures or annexures in case any
reference to such material has been made in that.

In addition to above facts, following rules should also be followed while drafting the
documents:

(i) Fowlers’ five rules of drafting

According to Fowler, “anyone who wishes to become a good writer should endeavour,
before he allows himself to be tempted by more showy qualities, to be direct, simple, brief,
vigorous and lucid.”

The principle referred to above may be translated into general in the domain of vocabulary
as follows:

(a) Prefer the familiar word to the farfetched (familiar words are readily understood).

(b) Prefer the concrete word to the abstract (concrete words make meaning more clear
and precise).

(c) Prefer the single word to the circumlocution (single word gives direct meaning
avoiding adverb and adjective).

(d) Prefer the short word to the long (short word is easily grasped).

12.
(e) Prefer the Saxon word to the Roman (use of Roman words may create complications
to convey proper sense to an ordinary person to understand).

(f) Always prefer active voice to the passive voice in the drafting of documents.

(ii) Sketch or scheme of the draft document

The first rule on which a draftsman must act is this-that before his draft is commenced, the
whole design of it should be conceived, for if he proceeds without any settled design, his
draft will be confused and incoherent, many things will be done which ought to be done and
many left undone which ought to be done. He will be puzzled at every step of his progress in
determining what ought to be inserted and what is to guide him in his decision because he
does not know what his own object is.”

The importance of the above rule cannot be overemphasized and it should be observed by
every draftsman.

(iii) Skelton draft and its self-appraisal

After the general scheme of the draft has been conceived, the draftsman should note down
briefly the matters or points which he intends to incorporate in his intended draft. In other
words, he should frame what is called a “skeleton draft” which should be filled in or
elaborated as he proceeds with his work. Once the draft of the document is ready, the
draftsman should appraise it with reference to the available facts, the law applicable in the
case, logical presentation of the facts, use of simple language intelligible to layman,
avoidance of repetition and conceivable mis-interpretation, elimination of ambiguity of
facts, and adherence to the use of Fowlers’ Rules of drafting so as to satisfy himself about its
contents.

(iv) Special attention to be given to certain documents

Certain documents require extra care before taking up the drafting. For example, it must be
ensured that contractual obligations are not contrary to the law in the document, where the
facts so warrant to ensure. Further, in all the documents where transfer of immovable
property is involved through any of the prescribed legal modes, it is necessary to ensure the
perfect title of the transferor to such property proposed to be transferred by causing
investigation and searches in relation to such title done through competent lawyers or
solicitors in the concerned offices of Registrar of Assurance, local authorities, Registrar of
Companies (in the case of the vendor being a corporate unit) etc.

13.
In addition, the requisite permissions required under different enactments viz., Income-tax
Act, Land Ceiling Laws, Companies Act, 1956, Lessor’s consent in the case of leasehold land,
or any compliance desired under other Central or State Laws or personal laws etc. should be
planned to be obtained in advance and recited in the documents wherever thought
necessary.

(v) Expert’s opinion

If the draft document has been prepared for the first time to be used again and again with
suitable modification depending upon the requirements of each case it should be got vetted
by the experts to ensure its suitability and legal fitness if the corporate executive feels it so
necessary.

To sum up, the draftsman should bear in mind the following principles of drafting:

(i) As far as possible the documents should be self-explanatory.


(ii) The draftsman should begin by satisfying himself that he appreciates what he
means to say in the document.
(iii) The well drafted document should be clear to any person who has competent
knowledge of the subject matter.
(iv) The draft must be readily intelligible to layman.
(v) The document may not be perfect because it says too much or too little or is
ambiguous or contains one or more of the facts because it has to be applied in
circumstances which the draftsman never contemplated. This should be avoided
in the drafting of the documents.
(vi) Nothing is to be omitted or admitted at random on the document that is to say
negative statements should generally be avoided.
(vii) Use of juridical language should be made.
(viii) The text of the documents should be divided into paragraphs containing the
relevant facts. Each paragraph should be self-explanatory and should be properly
marked by use of Nos. of letters for clause, sub-clause and paragraphs.
(ix) Schedule should be provided in the documents. Schedule is a useful part of the
document and should contain the relevant information which forms part of the
document. Whether any portion of the document should be put into the
schedule(s) will depend upon the circumstances. The schedule is important in the
document as it explains useful matters which forms part of the document and
should not be ignored and should not be inserted in the body of the document.
The main function of the schedule is to provide supplementary test to the
document with clarity and convenience.
(x) The active voice is preferable to the passive voice, unless the passive voice in a
particular connection makes the meaning more clear.

14.
Legal Implications and Requirements

Drafting of documents is very important part of legal documentation. Documents are


subject to interpretation when no clear meaning could be inferred by a simple reading of
the documents. The legal implications of drafting, therefore, may be observed as under:

(a) Double and doubtful meaning of the intentions given shape in the document.

(b) Inherent ambiguity and difficulties in interpretation of the documents.

(c) Difficulties in implementation of the objectives desired in the documents.

(d) Increased litigation and loss of time, money and human resources.

(e) Misinterpretation of facts leading to wrongful judgement.

(f) Causing harm to innocent persons.

BASIC COMPONENTS OF DEEDS

Having understood, the meaning of drafting and conveyancing it is necessary to familiarise


with various terms such as deeds, documents, indentures, deed poll etc. These terms are
frequently used in legal parlance in connection with drafting and conveyancing. Out of
these, the meaning of deeds and documents, have a common link, and used in many a time
interchangeably, but it is very essential to draw a line in between.

Deed

In legal sense, a deed is a solemn document. Deed is the term normally used to describe all
the instruments by which two or more persons agree to effect any right or liability. To take
for example Gift Deed, Sale Deed, Deed of Partition, Partnership Deed, Deed of Family
Settlement, Lease Deed, Mortgage Deed and so on. Even a power of Attorney has been held
in old English cases to be a deed. A bond is also included in the wide campass of the term
deed.

For such an instrument covering so wide field it is difficult to coin a suitable definition. A
deed may be defined as a formal writing of a non-testamentary character which purports or
operates to create, declare, confirm, assign, limit or extinguish some right, title, or interest.
Many authorities have tried to define the deed. Some definitions are very restricted in
meaning while some are too extensive definitions. The most suitable and comprehensive
definition has been given by Norten on ‘Deeds’ as follows:

15.
A deed is a writing –

(a) on paper, vallum or parchment,


(b) sealed, and
(c) delivered, whereby an interest, right or property passes, or an obligation binding on
some persons is created or which is in affirmance of some act whereby an interest,
right or property has been passed.

In Halsbury’s Laws of England , a deed has been defined as “an instrument written on
parchment or paper expressing the intention or consent of some person or corporation
named therein to make (otherwise than by way of testamentary disposition, confirm or
concur in some assurance of some interest in property or of some legal or equitable right,
title or claim, or to undertake or enter into some obligation, duty or agreement enforceable
at law or in equity or to do, or concur in some other act affecting the legal relations or
position of a party to the instrument or of some other person or corporation, sealed with
the seal of the party, so expressing such intention or consent and delivered as that party’s
act and deed to the person or corporation intended to be affected thereby.

A deed is a present grant rather than a mere promise to be performed in the future.

Deeds are in writing, signed, sealed and delivered.

Deeds are instruments, but all instruments are not deeds.

Document

“Document” as defined in Section 31(18) of General Clauses Act, 1894 means any matter
expressed or described upon any substance by means of letters, figures or marks, or by the
more than one of those means, intended to be used, or which may be used, for the purpose
of recording that matter.

Illustration:

A writing is a document.

Words printed, lithographed or photographed are documents.

A map or plan is a document.

An inscription on a metal plate or stone is a document. A caricature is a document. Thus


document is a paper or other material thing affording information, proof or evidence of
anything.

16.
All deeds are documents. But it is not always that all documents are deeds. A document
under seal may not be a deed if it remains undelivered, e.g. a will, an award, a certificate of
admission to a learned society, a certificate of shares or stocks and share warrant to bearer,
an agreement signed by directors and sealed with the company’s seal, license to use a
patented article, or letters of co-ordination.

Various Kinds of Deeds

Particular statutory definitions cover different sets of deeds. In the re-statement of


American Law in Corpus Juris Secundum, the following kinds of deeds have been explained:

A good deed is one which conveys a good title, not one which is good merely in form.

A good and sufficient deed is marketable deed; one that will pass a good title to the land it
purports to convey.

An inclusive deed is one which contains within the designated boundaries lands which are
expected from the operation of the deed.

A latent deed is a deed kept for twenty years or more in man’s escritoire or strong box.

A lawful deed is a deed conveying a good or lawful title.

A pretended deed is a deed apparently or prima facie valid.

A voluntary deed is one given without any “valuable consideration”, as that term is defined
by law, one founded merely on a “good”, as distinguished from a “valuable”, consideration
on motives of generosity and affection, rather than a benefit received by the donor, or,
detriment, trouble or prejudice to the grantee.

A warranty deed is a deed containing a covenant of warranty.

A special warranty deed which is in terms a general warranty deed, but warrants title only
against those claiming by, through, or under the grantor, conveys the described land itself,
and the limited warranty does not, of itself, carry notice of title defects.

Some other terms connected with deeds are of importance of general legal knowledge.
These terms are mentioned herein below:

(i) Deed Pool

A deed between two or more parties where as many copies are made as there are parties,
so that each may be in a possession of a copy. This arrangement is known as deed pool.

17.
(ii) Deed Poll

A deed made and executed by a single party e.g. power of attorney, is called a deed poll,
because in olden times, it was polled or cut level at the top. It had a polled or clean cut
edge. It is generally used for the purpose of granting powers of attorney and for exercising
powers of appointment or setting out an arbitrator’s award. It is drawn in first person
usually.

(iii) (a) Indenture – Indenture are those deeds in which there are two or more parties. It was
written in duplicate upon one piece of parchment and two parts were severed so as to leave
an indented or vary edge, forging being then, rendered very difficult. Indentures were so
called as at one time they are indented or cut with uneven edge at the top. In olden times,
the practice was to make as many copies or parts as they were called, of the instruments
as they were parties to it, which parts taken together formed the deed and to engross all of
them of the same skin of parchment.

(b) Cyrographum – This was another type of indenture in olden times. The word
“Cyrographum” was written between two or more copies of the document and the
parchment was cut in a jugged line through this word. The idea was that the difficulty of so
cutting another piece of parchment that it would fit exactly into this cutting and writing
constituted a safeguard against the fraudulent substitution of a different writing for one of
the parts of the
original. This practice of indenting deeds also has ceased long ago and indentures are really
now obsolete but the practice of calling a deed executed by more than one party as an
“indenture” still continues in England.

(iv) Deed Escrow

A deed signed by one party will be delivered to another as an “escrow” for it is not a perfect
deed. It is only a mere writing (Scriptum) unless signed by all the parties and dated when the
last party signs it. The deed operates from the date it is last signed. Escrow means a simple
writing not to become the deed of the expressed to be bound thereby, until some condition
should have been performed.

18.
Components of Deeds

The usual parts or components or clauses of deeds in general are mentioned as follows:

(1) Description of the Deed Title.


(2) Place and Date of execution of a Deed.
(3) Description of Parties to the Deed.
(4) Recitals.
(5) Testatum.
(6) Consideration.
(7) Receipt Clause.
(8) Operative Clause.
(9) Description of Property.
(10) Parcels Clause.
(11) Exceptions and Reservations.
(12) Premises and Habendum.
(13) Covenants and Undertakings.
(14) Testimonium Clause.
(15) Signature and Attestation.
(16) Endorsements and Supplemental Deeds.
(17) Annexures or Schedules

Engrossment and Stamping of a Deed

The draft of document is required to be approved by the parties. In case of companies it is


approved by Board of Directors in their meeting or by a duly constituted committee of the
board for this purpose by passing requisite resolution approving and authorising of its
execution. The document after approval is engrossed i.e. copied fair on the non-judicial
stamp-paper of appropriate value as may be chargeable as per Stamp Act. In case document
is drafted on plain paper but approved without any changes, it can be lodged with Collector
of Stamps for adjudication of stamp duty, who will endorse certificate recording the
payment of stamp duty on the face of document and it will become ready for execution.
If a document is not properly stamped, it is rendered inadmissible in evidence nor it will be
registered with Registrar of Assurances.

DRAFTING OF AGREEMENTS

An agreement which is enforceable at law is called a contract. Generally when a contract is


reduced to writing, the document itself is called an agreement. A company has to execute
countless commercial agreements and other contracts during the course of its business. But
how many company executives possess the simple, easily cultivable, yet rare acumen of
concluding their contracts precisely, comprehensively and unambiguously? It is very much
desirable and useful to keep in view certain important points in regard to the drafting of
contracts, particularly commercial and international trade contracts.

19.
PROJECT PROPOSAL

PART-B

DRAFTING, PLEADING AND CONVEYANCING, PRE-TRIAL


PREPARATIONS, PREPARATION IN TRIAL PROCEEDINGS AND MOOT
COURT

MOOT COURT MEMORIAL

ON THE BEHALF OF PETITIONER


S.S.JAIN SUBHODH LAW COLLEGE MOOT COURT COMPETITION-2017

MEMORIAL ON BEHALF OF THE PETITIONERS

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

WRIT PETITION No._____/2017

IN THE MATTER OF:-

1) MLRC, LEGAL RESEARCH CENTER


2) ACCESS, NGO
….. PETITIONERS

VERSUS

1) UNION OF INDIANA
….. RESPONDENTS

MEMORENDUM ON THE BEHALF OF THE PETITIONERS


TABLE OF CONTENTS

SR. No. CONTENTS PAGE NO.

1. ABBREVIATIONS 23

2. INDEX OF AUTHORITIES 24

3. STATEMENT OF JURISDICTION 25

4. SUMMARY OF FACTS 26-27

5. ISSUES FOR CONSIDERATION 28

6. ARGUMENTS ADVANCED 29-40

7. PRAYER 41

22.
LIST OF ABBREVIATIONS

A.I.R All India Reporter

Ors. Others

SC Supreme Court

Art. Article

Co. Company

Raj. Rajasthan

UP Uttar Pradesh

CSCeGov CSC e-governance Services India Ltd.

I.T. Act Income Tax Act, 1961

DSCI Data Security Council of Indiana

JePS Janadhar enabled payment services

UIDAI Unique Identification Authority of Indiana

Kms. Kilometers

23.
INDEX OF AUTHORITIES

CONSTITUTION/STATUTES/RULES REFERRED

 Article 21 of the Constitution of Indiana


 Article 14 of the Constitution of Indiana
 Article 19 (1)(a) and 19 (2) of the Constitution of Indiana

BOOKS, DIGESTS, COMMENTARIES

 DR. J.N PANDEY , Constitution Law of India , 51st Edition, Central Law Agency, 2014

 PROF. M.P JAIN Indian Constitution Law 6th Edition published by Lexis Nexis
Butterworth Wadhwa Nagpur

 DR.DURGA DAS BASU Constitution of India 20th edition published by Lexis Nexis
Butterworth Wadhwa Nagpur

 DR. G.P. TRIPATHI Constitutional Law 1st edition 2013

WEBSITES REFERRED:

 www.scconline.com
 www.manupatra.com
 www.lexisnexis.com
 www.bloomsburgycollection.com

CASES REFERRED:

• Justice K.S. Puttaswamy (Retd.) v/s Union of India and Ors.

• Binoy Visman v/s Union of India

• State of U.P. v/s Sunil

• Shankaria v/s State of Rajasthan A.I.R. 1978 SC


STATEMENT OF JURISDICTION

The Hon'ble Supreme Court of Indiana has the jurisdiction in this matter under

Article 32 of the Constitution of Indiana which reads as follows:

"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.

25.
STATEMENT OF FACTS

 The republic of Indiana got independence from Britica on 15th September, 1946.
Indiana was a colony for about 150 years. On getting Independence, it enacted its
constitution which provided for a democratic parliamentary form of governance with
a federal structure based on the principles of free and fair elections, equality, liberty,
fraternity, transparency and accountability of the state and freedom of religion as its
core values.

 The higher judiciary is made the guardian and interpreter of the Indian Constitution
and hence the power of Judicial review of the laws and actions of the government is
given to higher judiciary.

 The government of Indiana formulated a policy named “Janadhar” for profiling its
citizens and to provide them a card named “Janadhar Card”. The janadhar card was
meant to identify citizens for various benefits given by the government.

 MLRC, a Legal Research Center, has approached Hon’ble Supreme Court of Indiana,
through a Public Interest Litigation against the Union of Indiana contending that the
collection of Biometric Data for the purpose of Janadhar Card violates Article 21 of
the Constitution of Indiana which grants “Right to Privacy” as a fundamental right.

 The Hon’ble Supreme Court taking into consideration the gravity of the same, have
decided to hear the matters jointly and the notice was issued to the Union of
Indiana.

26.
 An another petition filed by ACCESS, an NGO before the Hon’ble Supreme Court has
contended that Janadhar Card is mandatory by government to avail the benefits
under various social welfare schemes. The non availability of Janadhar Card denies
the citizens to access the benefits of various social welfare schemes which clearly
violates the fundamental right of equality and also defeats the purpose of welfare
state enshrined under the Directive Principles of State Policies given in Constitution
of Indiana.

27.
ISSUES FOR CONSIDERATION

1. WEATHER JANADHAR CARD SCHEME VIOLATES ARTICLE 21 OF THE


CONSTITUTION OF INDIANA ?

2. WEATHER JANADHAR CARD SCHEME VIOLATES ARTICLE 14 OF


CONSTITUTION OF INDIANA ?

28.
STATEMENT OF ARGUMENTS

1. Whether the Janadhar card scheme violates Article 21 of Constitution of


Indiana ?

Yes, the janadhar card scheme violates Article 21 of the Constitution of Indiana which deals
with Right to Privacy. Not everyone understands what privacy means which makes the
privacy debate more difficult. And those who do may interpret it differently.

One of the earliest definitions comes from Warren and Brandeis, who, in a 1890 paper,
described privacy as a “right to be left alone” In that sense, privacy is not necessarily about
hiding something or keeping stuff secret.

In 1975, Altman describes privacy as “selective control of access to the self”. This implies
that privacy concerns an individual’s ability to control what personal information is
disclosed, to whom, when and under what circumstances.

Some suggest that the social context and culture determines the meaning of privacy: what is
considered private in one part of the world may not be so in the other. Helen Nissenbaum
proposed the idea of contextual integrity wherein boundaries allow individuals to control
the transfer of personal information. But there are multiple boundaries, not one, which she
calls “context based boundaries.”

Article 21 of The Constitution of Indiana read as follows:-

“A citizen has the right to safeguard the privacy of his own, his family, marriage,
procreation, motherhood, child bearing and education among other matters. None can
publish anything concerning the above matters without his consent weather truthful or
otherwise and weather laudatory or critical. If he does so, he would be violating the right of
the concerned and would be liable in action for damages.”

29.
Privacy from government

Traditionally, privacy has been understood in terms of surveillance by the state. Given that
the government enjoys influence over the state machinery and have coercive powers
related to law enforcement, mass surveillance is in a contest with the basic tenets of a
liberal democracy.

“The right of privacy against the State is thus premised on the idea of personal freedom.”

It’s a trade-off

Privacy is often at loggerheads with national security and the benefits of big data.
Governments justify surveillance programmers by claiming that the information gathered
about citizens would help in fighting terrorism. But that comes at the cost of their privacy.
Given that both “national security” and “privacy” are vaguely defined, it is pointed out that
“there is no clarity on when one gives way to the other, and it is undeniably the rhetoric of
national security that invariably overwhelms privacy.” Inadequate privacy protection can
have significant consequences- ranging from identity theft, and increased profiling and
discrimination of individuals, to a loss in speech due to an ensuring “chilling effect”. Privacy
protections are thus required not only from the state but also from the private sector. In
fact a recent Nasscom- DSCI survey showed that inadequate data protection frameworks
were causing losses worth billions of dollars to the Indian IT-BPO sector, in part because
India’s data protection regime was not considered adequate by the EU.

The narrowest view of privacy is the technical ‘data security’ point of view. The focus there
is on what data need to be secure (the janadhar number, demographic information or
biometrics), weather data stored in the Central Identities Data Repository is secure (such as
the encryption standards or the probability of hacking) and what would the consequences
of data breaches be (for instance, some people ask what is the harm if an janadhar number
is publicly displayed). The response of the Unique Identification Authority of India (UIDAI)
and others is that data are encrypted using the highest standards, that access is severely
restricted, and that, in any case, there have been no security breaches so far.

30.
Experts, however, believe that for centralized databases the question is not whether it can
be hacked, but when. For instance, when this database is hacked – and it will be – it will be
because someone breaches the computer security that protects the computers actually
using the data.”

For instance, recently Hindustan Times reported that 200 students in Mumbai replicated
their fingerprints on a widely-used resin to fudge biometric attendance. Easy harvesting of
biometrics traits and publicly-available janadhar numbers increase the risk of banking fraud.
In the light of this emerging financial technology infrastructure which rides on janadhar and
biometrics, the recent ‘janadhar leaks’ scandal (whereby janadhar numbers of lakhs of
people were displayed on government portals) is significant.

The emerging JePS architecture opens the door to identity theft. Even in the absence of data
breaches, that is an alarming breach of privacy.

A second privacy concern is from the “personal integrity” point of view, the discomfort from
information about our lives being available to people or institutions with whom we do not
wish to share it. Some believe that this interpretation of privacy is an elitist concern.
Veteran journalist Shekhar Gupta tweeted, “Crores of Rural and Urban poor see Janadhar as
a tool of empowerment. They don’t even know elite Anti-Janadhar echo chambers exist and
they don’t care. Such frivolous comments are an attempt to trivialize the debate on privacy.

Taking into consideration of the same a recent tweet made by the government department
with account named @CSCeGov a picture was uploaded by this twitter account in which ACE
cricketer M.S. Dhoni’s Fingerprints are getting scanned into the system. A picture of the
details was also uploaded on which aggression of an anger was made by his wife Sakshi as
she twitted to Shri Ravi Shankar Prasad (Minister of Elections and Information Technology)
and after getting the knowledge of same Shri Ravi Shankar Prasad himself admitted that
“Sharing personal information is illegal and serious action will be taken” which clearly

31.
proves that the picture of the application along with picture of the famous cricketer M.S.
Dhoni was intentionally uploaded and if the same can be intentionally uploaded than how
can we believe that our personal information cannot be leaked or be theft or can be
misused ?

Further, a marketing company working for the Republican National Committee accidentally
left sensitive personal details of almost 62 per cent of the US Popluation exposed which was
reported as the largest breach of electoral data in US till date. Along with the information on
about 200 million U S Citizens’ homes, addresses, birthdates, phone numbers and political
views. The information also included analysis used by political groups to predict where
individual voters fall on controversial issues such as gun ownership, stem cell research and
the right to an abortion. The same information was stored in spread sheets uploaded to the
server by Deep Root Analytics, the huge cache of data was discovered last week by Chris
Vickery, a cyber analyst with the security company Up-Guard.

Further More, another data breach happened. This time sensitive and personal data of
millions of transporters in Sweden, along with the nation’s military secrets, have been
exposed, putting every individual’s as well as national security at risk.

Who exposed the Sensitive data ? the Swedish Government itself.

The data breach exposed the names, photos and home address of millions of Swedish
citizens, including fighter pilots of Swedish Airforce, members of the military’s most
secretive units and much more.

The janadhar card policy which also includes the same as names of individuals asnd family
members, photos, addresses, contact numbers and in addition The IRIS Scan and
Fingerprints of the Individual.

32.
If these kind of scandals and leaks can take place in which the government itself has leaked
the personal information or the data has been hacked or the information has been
mistakenly uploaded than what makes us believe that our data/personal information are
safe with the government departments i.e. UIDAI ? Intentionally or unintentionally or by
mistake it will happen and when it will happen the public will have to suffer the
consequences.

Therefore providing the biometric data is totally contrary to the Article 21 of the
Constitution of Indiana and clearly violates Right to Privacy a fundamental right.

Further, coming to next point of view , and according to Section 139AA of the Act (herein
referred to as Income Tax Act 1961) reads as under: Quoting of janadhar number. (1) Every
person who is eligible to obtain janadhar number shall, on or after the 1st day of July, 2017,
quote janadhar number : (i) in the application form for allotment of permanent account
number; (ii) in the return of income:

Provided that where the person does not possess the Janadhar Number, the Enrolment ID
of Janadhar application form issued to him at the time of enrolment shall be quoted in the
application for permanent account number or, as the case may be, in the return of income
furnished by him.

Every person who has been allotted permanent account number as on the 1st day of July,
2017, and who is eligible to obtain janadhar number, shall intimate his janadhar number to
such authority in such form and manner as may be prescribed, on or before a date to be
notified by the Central Government in the Official Gazette: Provided that in case of failure
to intimate the Janadhar number, the permanent account number allotted to the person
shall be deemed to be invalid and the other provisions of this Act shall apply, as if the
person had not applied for allotment of permanent account number.

33.
The provisions of this section shall not apply to such person or class or classes of persons or
any State or part of any State, as may be notified by the Central Government in this behalf,
in the Official Gazette 1. The cursory look at the aforesaid provision makes it clear that in
the application forms for allotment of PAN as well as in Income Tax Returns, the assessee is
obliged to quote Janadhar card number. The right to life covers and extends to a person’s
right to protect his or her body and identity from harm. The right to life extends to allowing
a person to preserve and protect his or her finger prints and iris scan. The strongest and
most secure manner of a person protecting this facet of his or her bodily integrity and
identity is to retain and not part with finger prints/iris scan.

The right to life under Article 21 read with Article 14 and 19 permits every person to live life
to the fullest and to enjoy freedoms guaranteed as fundamental rights, Constitutional Rights,
Statutory Rights and common law rights.

1. For the purposes of this section, the expressions:-

(i) Janadhar number, Enrolment and resident shall have the same meanings respectively assigned to
them in clauses (a), (m) and (v) of section 2 of the Janadhar (Targeted Delivery of Financial and other
Subsidies, Benefits and Services) Act, 2016 (18 of 2016); Writ Petition (Civil) No. 247 of 2017 & Ors.
Page 2

(ii) Enrolment ID means a 28 digit Enrolment Identification Number issued to a resident at the time of
enrolment.
The Section 139AA of the Income Tax Act, 1961 for mandatory of quoting of Janadhar
Card/enrolment ID of Janadhar Application form, for filing of Income Tax Return- is
unworkable. This is because of Janadhar by its very design and by its statue is “voluntary”
and creates a right in favour of a resident without imposing any duty. There is no
compulsion under the Janadhar Act to enroll or to obtain a number. If a person chooses not
to enroll, at the highest, in terms of Janadhar Act, he or she may be denied access to certain
benefits and services funded through Consolidated Fund of India

This is necessitated on any such applications for PAN or Return of Income on or after July 01,
2017, which means form that date quoting janadhar card number for the aforesaid purpose
becomes essential. Proviso to sub-section (1) gives relaxation from quoting janadhar card
number to those persons who do not possess janadhar number but already applied for
issuance of janadhar card number. The challenge is to the compulsive nature of provision in
as much as with the introduction of the aforesaid provision, no discretion is left with the
income tax assessee insofar as the janadhar act is concerned. Although the janadhar act
prescribes that enrolment under the said act is voluntary and gives a choice to a person to
enroll or not to enroll himself and obtain janadhar card, this compulsive element thrusted
in Section 139AA of the Act makes the said provision unconstitutional.

Biometric information, specifically finger prints and iris scan are intimate parts of a person’s
body. They belong to the person, not the state. According to Jhon Locke, “Through the
Earth, and all inferior Creatures be common to all men, Yet every man has a property in his
own person and Salmond reminds us that he speaks “of a man’s right to preserve his own
property i.e his life, liberty and estate” As Peter Benson notes in ‘Philosophy of Property
Law’ , “The right of bodily integrity is , first of all, a right i.e. it refers to the fact that each
individual has the rightful exclusive possession and use of his or her own body as against
everyone else.

When the Janadhar enrolment procedure is supposedly based on Informed free consent and
is Voluntary a person cannot be compelled by another law to waive free consent so as to
alter the voluntary nature of enrolment that is engrafted in the parent statue.

35.
The right of a resident under parent Act cannot be converted into a duty so long as the
provisions of Janadhar act remains as they are.

This clash or collision between Section 139AA of the Act and the Janadhar Act renders the
impugned section unworkable, unreasonable and void because of discriminatory object. The
provision is violative of Articles 14, 19 and 21. Converting the right into duty is colourable
exercise of power.

A statutory provision that completely takes away the voluntary nature of janadhar and
compels Expropriation of a person’s finger and iris scan is per se violative of Article 21. In
any event such coercion cannot be imposed on legitimate tax payers and assessee who are
otherwise willing to and pay income tax. There is no concept of eminent domain of the state
Qua a person and his body. The state cannot hold an individual citizen Hostage, by
compelling them to be part with something that does not belongs to state.

In a digital world, the right to life includes maintaining personal autonomy through
informational self determination. An individual must be allowed to limit what he or she
wants to put out because otherwise her personal autonomy could get compromised.

The coercion amounts to compelled speech. The freedom of speech includes the right to
remain silent. Hence the citizen is being compelled to speak or part with his or her
demographic information as well as finger prints and iris scan. The impugned provision
violates Article 19(1)(a) and is not saved under Article 19(2).

On its part, Section 30 of the Janadhar Act, 2016 read with Section 43A of the Information
Technology Act, recognizes “biometric information” to be a sensitive personal data or
information. The recognition of the distinction between an individual or person and the
state is single most important factor that distinguishes a totalitarian state from one that
respects individuals and recognizes their special identity and entitlement to dignity.

36.
The Indiana Constitution does not establish a totalitarian state but creates a state that is
respectful of individual liberty and constitutionally guaranteed freedoms. The constitution
of Indiana is not a charter of servitude.

2. Whether the janadhar card scheme violates Article 14 of Constitution of


Indiana ?

YES, the Janadhar Card Scheme violates Article 14 of the Constitution of Indiana.
Article 14 of Indiana uses two expressions “Equality before Law” and “Equal
Protection of Law”. Both these expressions aim at establishing what is called
“Equality of Status” in the preamble of Constitution. Equality before law is somewhat
a negative concept implying the absence of special privilege in favour of individuals
and the equal subject of all classes to ordinary law. The objective which preamble
secures to every citizen is Equality- of Status and of opportunity; and to promote
among them all.
But the Central Government has made Janadhar, the unique Identification number
mandatory for at least 108 schemes and services. Without janadhar we cannot
access to these schemes. These includes availing a mid day meal at school or even
receiving cash assistance as a TB Patient. The government says making janadhar card
mandatory will discourage fraud and ease distribution of subsidy, but the Supreme
Court says it cannot be requirement of Welfare Schemes. Of the 108 services for
which janadhar card is required, all, barring 21, are welfare schemes. It is also
pertinent to mention that these schemes are time barred i.e. there is a limitation of
time for linking the individual janadhar card with the scheme in which individual is
interested in. If the janadhar card is not linked with the scheme/service interested
than interested individuals will not be able to avail benefit of the welfare schemes.
There will be no extension and the doors to avail benefit of welfare schemes will
automatically be closed.

37.
The denying individuals to avail benefits of Social welfare schemes who are not in
possession of janadhar itself made discrimination among the citizens and violated
the right of Equality.
The provisions stipulated by Central Government and Janadhar Card are contrary to
each other.

Certain points regarding this issue


 One provision says that linking janadghar card is mandatory and the other
says that enrolment of janadhar is voluntary. In this issue the one who suffers
is the “individual”.
 The janadhar card is meant to be a unique identity of the individual but at the
time of non availability of janadhar card other documents were also treated
as the same.

 The individuals who are in need of availing benefits of government welfare


schemes are not getting the same due to lack of availability of janadhar card
which again creates inequality among them.

 The individuals who are the main sufferers of non availability of janadhar
card are mainly those people who are on and below the poverty line.

 Due to non availability of janadhar card the one who are in need to avail
benefits of the scheme are being snatched by those individuals who are in
possession of janadhar card.

The main sufferings of the individuals are as below :-


 Firstly problem in getting the ration and consumable items which are
available at very low prices.

38.
 Another problem is that the fingerprints of a small fraction of the
population may be unsuitable for automatic identification because the
prints may be deformed as a result of aging, some genetic condition, or
environmental reasons.
 On an interview in the villages of Adulatpura, Amamrpura, Kanpura,
Rahanpura, it was found that the villagers keep on waiting on the ration
shops and most of them were of elder age and includes women. There
were alos a few construction workers in the queue. Dakhu Devi, Ananda
Singh, Ganga Devi, was among those whose fingerprints could not be
authenticated. Badarji, an elderly from Kanpura, left his ration card and
janadhar card with Irfan Ali after five unsuccessful attempts to
authenticate his fingerprints. “Din bhar pareshan, anghoota bhi na
mile”. They hassle us the whole day, and finger prints does not match
said badarji, as he went away. Badami devi complained about the
connectivity and malfunctioning of the device.
 Raju singh, an 18 year old migrant construction labourer working in
Bhilwara 150 kms away who was visiting home in Daulatpura, said he had
to get his ration card made thrice after his address was wrongly recorded
as Shergarh panchayat. But after that trouble, when he tried to use his
janadhar, the biometric machine read it someone else’s ration card, a
“seeding” error. When I showed it to officials, “they said your janadhar
has got linked to someone else’s ration card”. They gave him no further
help, he said.
 In Masuda in Ajmer, while several like Singh suffer from “seeding errors”,
there are thousands whose welfare details have not been “seeded” at all.
This makes them ineligible for benefits.

39.
 In Rajasthan, a beneficiary’s household details have to be additionally
seeded in Bhamashah scheme, the state direct benefits transfer
programmed riding on technical infrastructure created for janadhar. Only
when these processes are complete can an janadhar holder receive a
subsidy, benefit or a cash transfer.
 The law is abides the citizens who wish to pay taxes but do not wish to
enroll in janadhar. The amendment to the I.T. Act introduced as part of
the Finance Bill during the recent budget session of parliament –
discriminates between those who have janadhar and those who do not
want to get janadhar , both classes of people want to pay taxes, but those
who do not wish to get janadhar will face Penal Consequences, a clear
violation of Article 14 of Constitution of Indiana which guarantees Right
to Equality.

From the above discussion it is ample clear that the individuals who are in
possession of janadhar are availing benefits of the Social welfare schemes and
those who are not in possession of janadhar are being deprived of benefits of
Social Welfare schemes which is a clear violation of Right to Equality which is
guaranteed under Article 14 of Constitution of Indiana. The government on one
side is snatching away the privacy of individuals by compelling them to be
enrolled in Janadhar and on the other hand not being enrolled in janadhar will
deprive them by their very nature to avail benefits of Social welfare schemes and
even having janadhar card they are deprived to avail benefits of social welfare
schemes due to in authentication of Biometric data. The government cannot
have both the ways as first snatching the privacy of Individuals and making the
needy people deprived of the Social welfare schemes just on the plea that they
are not in possession of janadhar card.

40.
PRAYER

Wherefore, in the light of facts presented, issues raised, arguments advanced the counsels
for the Petitioner humbly pray before this Hon’ble Court that it may be pleased to adjudge
and declare that:

(a) The Janadhar scheme is a clear violation of article 21 of The Constitution of Indiana
and this scheme should be declared unconstitutional.
(b) The Janadhar scheme is a clear violation of Article 14 of The Constitution of Indiana
and the doors of Social Welfare Schemes should be opened for every individual
without any discrimination on the basis of Janadhar Scheme.
(c) Pass any other order which the Hon’ble Court may deem fit in the interest of justice,
equity and good conscience.

AND FOR THIS ACT KINDNESS OF YOUR HONOUR THE PETITIONER SHALL AS DUTY
BOUND SHALL EVER PRAY.

All of which is respectfully affirmed and submitted

Counsels for Petitioners

41.
PROJECT PROPOSAL

PART-C

DRAFTING, PLEADING AND CONVEYANCING, PRE-TRIAL


PREPARATIONS, PREPARATION IN TRIAL PROCEEDINGS AND MOOT
COURT

MOOT COURT MEMORIAL

ON THE BEHALF OF RESPONDENTS


S.S.JAIN SUBHODH LAW COLLEGE MOOT COURT COMPETITION-2017

MEMORIAL ON BEHALF OF RESPONDENTS

BEFORE THE HON’BLE SUPREME COURT OF INDIANA

WRIT PETITION No._____/2017

IN THE MATTER OF:-

3) MLRC, LEGAL RESEARCH CENTER


4) ACCESS, NGO
….. PETITIONERS

VERSUS

2) UNION OF INDIANA
….. RESPONDENTS

MEMORENDUM ON THE BEHALF OF THE RESPONDENTS


TABLE OF CONTENTS

SR.NO. CONTENTS PAGE NO.

1 ABBREVIATIONS 45

2 INDEX OF AUTHORITIES 46-47

3 STATEMENT OF JURISDICTION 48

4 SUMMARY OF FACTS 49

5 ISSUES FOR CONSIDERATION 50

6 SUMMARY OF ARGUMENTS 51-52

7 ARGUMENTS ADVANCED 53-57

8 PRAYER FOR RELIEF 58

44.
ABBREVIATIONS

A.I.R ALL INDIA REPORTER

SC SUPREME COURT

Art. Article

Sec. Section

GOVT. Government

U.P. Uttar Pradesh

M.P. Madhya Pradesh

PIL Public Interest Litigation

T.N. Tamil Nadu

Edn. Edition

45.
INDEX OF AUTHORITIES

I. CONSTITUTION/ STATUTES/ RULES

 The Constitution of Indiana, 1950


 I.T. Act 2000
 Aadhaar Act 2016

II. TABLE OF CASES

S.NO NAME OF THE CASE CITATION


1 A.K. Gopalan v. State of Madras A.I.R. 1950 SC 27
2 Kharak Singh v. State of Uttar Pradesh A.I.R. 1963 SC 1295
3 Ram Narayan Singh v. Delhi A.I.R. 1953 SC 277
4 Govind v. State of M.P. A.I.R. 1975 SC 1379
5 Maneka Gandhi v. Union of India A.I.R. 1978 SC 597
6 R.RAjgopal v. State of T.N. (1994)6 SCC 632
7 Mr ‘X’ v. Hospital ‘Z’ A.I.R. 1995 SC 495
8 Mrs. ‘X’ v. Mr. ‘Z’ A.I.R. 2002 Delhi 217
9 Malak Singh v. State of Punjab A.I.R. 1981 SC 760
10 M.P. Sharma V. Satish Chandra A.I.R. 1954 SC 300
11 People Union for civil Liberties v. Union of India A.I.R. 1997 SC 568
12 Justice K.S. Puttaswamy v. Union of India A.I.R. 2015 SC 3081
13 SuchitraSrivastava v. Chandigarh Administration A.I.R. 2010 SC 235
14 R M Malkani v. State of Maharasthra (1973) 1 SCC 471

15 Kharak Singh v. State of U.P. A.I.R. 1963 SC 1295

16 AIR India v. NargisMirza A.I. R. 1981 SC 1829

17 Assutush Gupta v. State of Rajasthan (2002) SCC

46.
III. BOOKS , DIGESTS, COMMENTARIES

1. M.P. Jain. , Indian Constitution Law (LaxisNexis , New Delhi , 7th Edn, 2015)

2. V.N. Shukla , Constitution of India (Eastern Book Co., New Delhi 12th Edn; 2013)

3. Dr. J. N. PANDAY, Constitutional Law of India ( Central Law Agency ; 54th Edn.

2017)

IV. DICTIONERIES

 Black’s Law Dictionary .

 Bryan A. Garner , Black’s law Dictionary (9th Edn., 2009)

V. WEBSITE REFFERRED

 www. scc. online .com

 www.Manupatra. com.

 www.Supreme Court of India.

47.
STATEMENT OF JURISDICTION

The petitioner has approached this Hon’ble Supreme court of INDIANA for writ petition
under article 321, of the constitution of INDIANA.

32. Remedies for enforcement if 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 direction or orders or writs , including
writ 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 supreme court by clause ( 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 supreme court under
clause (2)

(4) The right guaranteed by this article shall not be suspended except as provided for by
this Constitution”.

1
Article 32, Constitution of Indiana, 1950
STATEMENT OF FACTS

1. INDIANA is a union of state and is a secular state and which is a democratic country.The
Constitution of INDIANA provides fundamental and Constitutional rights to its people.
2. Republic of INDIANA has its independent and autonomous Election Commission and Judiciary
of INDIANA is also autonomous and independent.
3. The higher judiciary is made the guardian and interpreter of the INDIANA Constitution and
hence the power of judicial review of the laws and actions of the government is given to the
higher Judiciary.
4. The government of INDIANA formulated a policy named “ Janadhar” for profiling of its
citizens and to provide them a card called “Janadhar Card”. The Janadhar Card was meant to
identify citizens for various benefits given by the government.
5. MLRC, a legal research center, has approached the Honorable supreme court of Indiana, through
a Publicinterestpetition, against the union of Indiana, contending that the collection of biometric
data for the purpose of the Janadhar card , violates “the right to privacy” of the citizens. The
petitioner contends that this is a violation of article 21 of the constitution of INDIANA a
whichgrants“Right to privacy” as a fundamental right.
6. In another petition filed by ACCESS, an NGO working on the issues regarding civil and
political rights of citizens, before Honorable Supreme Court that Janadhar Card denies the
citizens the access to the benefits under various social welfare schemes. The petitioner alleged
that non availability of Janadhar card denies the citizens the access to the benefits under various
social welfare schemes, which is clear violation of fundamental “right to equality” as guaranteed
by the Constitution of INDIANA.
7. The NGO has contended that by denying citizens access to scheme also defeats the basic
purpose of welfare state enshrined under the directive principles of state policies given
constitution of INDIANA.

49.
.

ISSUES FOR CONSIDERATION

1. WHETHER THE PRESENT WRIT PETITION IS MAINTINABLE

OR NOT?
1.1 Whether the Janadhar card policy of Govt. is violating the Art.21 which grant

“right to privacy” or not?

1.2 Whether the non-availability of Janadhar card violates the Art. 14 which provides

“Right to Equality” ?

2. WHETHER THE “JANADHAR CARD” IS CONSTITUTIONAL OR


NOT?

3. WHETHER THE NON AVAILABILTITY OF JANADHAR CARD


LEADS TO VIOLATION OF ARTICLE 14 OF THE
CONSTITUTION OF INDIA AND DIRECTIVE PRINCIPLES?

50.
SUMMARY OF ARGUMENTS

1. WHETHER THE PRESENT WRIT PETITION IS MAINTINABLE


OR NOT?

The writ is not maintainable in Hon’ble Supreme Court of Indiana on the ground of not

violation of Art. 21 and Art.14 of the Constitution of Indiana which grant “Right to Privacy”

and “Right of Equality”.

1.1 Whether the Janadhar card policy of Govt. is violating the Art.21 which grant

“right to privacy” or not?

The Janadhar Card policy of Govt. of Indiana if not violating the Art.21 which grant “Right

to Privacy”. The information taken by Govt. of Indiana for making Janadhar card is only

general information and the Govt. not share this information with any person. The Govt. of

Indiana use this information only.

1.2 whether the non-availability of Janadhar card violates the Art. 14 which providies

“Right to Equality” :-

The non-availability of Janadhar card not violates the Art.14 which grant “ Right to

Equality”. Because the Janadhar card policy is available for all the citizen of Indiana. This

scheme is mandatory for all the citizen of Indian. The Govt. is not doing discrimination on

ground of religion, race , caste , sex or place of birth. So Janadhar card policy is not violates

the Art. 14.

51.
2. WHETHER THE JANADHAR CARD SCHEME SHOULD BE

DECLARED UNCONSTITUTIONAL OR NOT ?.

The Janadhar Card scheme of Indiana should not be declare unconstitutional because

it is not violating the Art. 21 and Art.14 of Constitution of Indiana. Janadhar Card

scheme was taken by Govt. of Indian to provide an unique identity. This scheme is for

proving direct benefits to its citizen. It will stops corruption in social welfare scheme

of govt. This scheme is in large interest of public.

52.
ARGUMENT IN ADVANCE

1. WHETHER THE PRESENT WRIT PETITION IS MAINTINABLE OR


NOT?

The present PIL which is filed in Supreme Court under the Art.321 of Indiana Constitution,
by MLRC, A Legal Research Center, against the Union of Indiana, that the collection of
biometric data for purpose of Janadhar card, violation of Art.212 of constitution of Indiana
which grants “Right to Privacy” as a fundamental Right. The present PIL which is filed in SC
is not main table. Because to taking biometric data for Janadhar card is not violates the ‘Right
of Privacy’.

Another Writ which is filed by ACCESS, an NGO which say that Janadhar card is made
mandatory by Govt. of Indiana to avail the benefits under various social welfare schemes,
non-availability of Janadhar card violates the Art. 14 which grant “Right to Equality”. This
scheme is not violates the Art.14 because it is for all the citizen of Indiana.

1.1 Whether the Janadhar card policy of Govt. is violating the Art.21
which grants “right to privacy” or not?

Art.21- Protection of life and personal liberty. No person shall be deprived of his life or
personal liberty except according to procedure established by law.

‘Personal Liberty’ include the freedom of movement which grant Art.19 (1) (d)3. The
restriction can be imposed by detention law on the freedom of movement must be reasonable
under Art.19 (5)4.

1
Article 32,Constitution of Indiana,1950
2
Art.21, Constitution of Indiana,1950
3
Art.19(1)(d), Constitution of Indiana, 1950
4
Art.19(5), Constitution of Indiana,1950
In Kharak Sing v. State of U.P.1 and Govind v. State of M.P.2. In both case S.C. held that the
police is also have right to surveillance on any person it will depend on the character and
antecedents of a person. Surveillance of police is also violation the Art.21 and Art.19 (1) (d)
but it is reasonable when a person is in bad nature and antecedent. In this situation reasonable
restriction applicable in security of nation and in good faith of society.

Right to Privacy:-

“Right to Privacy” is not specially defined in Constitution of Indiana.

In R. Rajagoplan v. State of T.N.3

In this case SC has expressly held the “Right to Privacy” or the right to be let alone is
guaranteed by Art.21 of the Constitution.

A Citizen has a right of safeguard the Privacy of his own, his family, marriage, procreation,
motherhood, childhood and education, among other matter. None can publish this data
without concerning of that person.

This rule is subject to an example that if any publications of such matter are based on public
record including the court record it will be unobjectionable. If a matter becomes a matter of
public records the ‘right of privacy’ no longer exists.

In Mr. X Hospital ‘Z’4 The SC has held that although the “right of privacy” is a
fundamental right under Art.21 of the Constitution of Indiana , but it is not a absolute right
and restriction can be imposed on it for the prevention of crime , disorder or protection of
health or morals or protection of rights and freedom of other.

In Ms. X v. Mr. Z5 In this case SC held that the right of privacy, through a fundamental
right forming part of life enshrined Art.21, is not as absolute right. When the right of privacy
has become a part of a public document, in that case a person can’t say that it infringe his or
her right to privacy.

1
AIR 1963 SC 1295
2
AIR 1975 SC 1379
3
(1994) 6 SCC 632
4
AIR 1995 SC 495
5
AIR 2002 Delhi 217
In Malak Sing v. State of Punjab1 SC held that the police officer to keep surveillance
over bad characters and habitual offence for the purpose of preventing crimes . That person
cannot demand that it is violation of Art.21 and Art.19 (1) (d).

People’s Union for civil Liberties v. Union of India.2. SC held that Telephone
tapping is a serious invasion of an individual’s; it is violation of “Right to Privacy”. But in
emergency or interest of public safety it is valid.

RIGHT TO PRIVA CY AND JANADHAR CARD


In Justice K.S. Puttaswany v. Union of India.3

The Janadhar card scheme of the Govt. of Indiana, under which the Govt. of Indiana was
collecting and compiling both the demographic and biometric data of residents of the country
to be used for various purpose, this collection of data is not violation of right to privacy. It
was decided on behalf of these judgments.

SC Judgment in M.P. sharma v. Satish Chandra 4 and Kharak Sing v. State of U.P.5
6
It was decided by eight or six judge bench respectively and Govind v. State Of M.P.
;R.Rajagoplan v. state of Tamil Nadhu7 .

It was decided that Right to Privacy is not enumerated as a fundamental right in our
Constitution but has been inferred from Art.21

A citizen has a right to safe guard the privacy of his own home, his family, marriage,
procreation, motherhood, child bearing and education among other matters. If any publish
this without consent than it is violation of right of privacy.

Taking data for making Janadhar card all information taken by Govt. are the basic
information which aslo be given by us in making voter id , driving license, opening a bank
account , on Fb , What’s up etc. so it is not violation of right to privacy.

1
AIR 1981 SC 760
2
AIR 1997 SC 568

3AIR 2015 SC 3081


4
AIR 1954 SC 300
5
AIR 1963 SC 1295
6
AIR 1975 SC 1379
1.2 Whether the non-availability of Janadhar card violates the Art. 14 which provides

“Right to Equality” :-

As a petition filed by an NGO working on the issue regarding civil and political rights of
Citizen that non availability of Janadhar card violates the Fundamental right “Right to
Equality”.
Right to Equality- The state shall not deny to any person equality before the law or equal
protection of law within the territory of India.
Prohibition on discrimination on ground of religion, race , caste, sex or place of birth.
The Janadhar card is for all citizens of Indiana .The Janadhar card Scheme is not violates
the Right to Equality because it is mandatory for all the citizen of Indian. Govt. of Indiana
is not doing discrimination on the ground of religion, race, caste, sex or place of birth.
This scheme is in welfare of society. This scheme is for providing direct benefit of social
welfare scheme to citizen of Indiana.

2 WHETHER THE JANADHAR CARD SCHEME SHOULD BE


DECLARED UNCONSTITUTIONAL.

The Janadhar Card scheme should not be declared as unconstitutional because it is not
violating the Art. 21 and Art.14 of the Constitution of Indiana which grants “Right to
Privacy” and “Right to Equality” as a fundamental right.
The Janadhar card is a scheme which provides a unique identification number of a
person. The biometric data taken by Govt. to make a Janadhar Card it is a Unique
identity of its citizen. This scheme issues a proof to its citizen as they are resident of
Indiana. Janadhar Card is a identity proof for its citizen. This scheme taken by Govt. that
to give direct benefit of to its citizen. As like Subsidies, food grain, and many direct
benefit to its people. By this scheme direct benefit of social schemes provided to its
citizen directly. It will stop corruption in social welfare schemes of govt.

56.
This scheme is in a large public interest, where the govt. has all information about its
citizen whenever they need to cheek than they can get information about it. It has
biometric data which is useful to police to catch criminals.
The Govt. of Indiana adding all the documents to Janadhar card as like Bank Account,
PAN Card, SIM Card etc. It helps to Govt. to reducing Black money in country.
All information related to Janadhar Card is Secure to Govt. of Indiana. The Govt. of
Indiana will use the information in large interest of public, in security of country. The
Govt. use this information in public welfare, it will not share it to any other so it is not
violation of “Right to Privacy”.
The Janadhar Card scheme is for all citizen of Indiana so it is not violates the “Right to
Equality”. The Govt. is not doing discrimination in providing Janadhar Card to its
Citizen.
This scheme is for providing benefits of social welfare scheme of Indiana. So it should
not be declare as Unconstitutional.
The Govt. of Indiana is able to protect the information or biometric data of Janadhar
Card. It ensure that here data is safe of Janadhar Card.
Chapter VI- of Janadahar Act. Provide the protection of information. It will not share the
personal information to ant other.
Chapter VII- IF any people does any unauthorized access or tries to theft the information
that there is also provision for penalties.

57.
PRAYER

Wherefore, in the light of the facts started , issue , raised , argument advanced and
authorities citied , it is most humbly prayed by the Responded in this matter that the
Hon’ble Supreme court of Indiana , be pleased to:-

1. Dismiss the Present PIL on this ground that taking biometric data for the purpose
of making ‘Janadhar Card is not violating the Art.21 Which grant the “Right of
Privacy”.

2. Dismiss another petition also on this ground that non availability of Janadhar
Card is not violating the Rigth of Equality.

3. Declare that Janadhar Card Scheme of Govt. is Constitution and make the
Janadhar Card mandatory for all Citizen of Indiana in welfare of Citizen and in
large public interest.

and / or

Pass any other order it may deem fit, in the interest of Justice, Equity and Good
Conscience
For this act of kindness, the Responded shall forever humbly pray.

Place: Respectfully Submitted by,

Date:………… Counsels for the Respondents

58.
PROJECT PROPOSAL

PART-D

DRAFTING, PLEADING AND CONVEYANCING, PRE-TRIAL


PREPARATIONS, PREPARATION IN TRIAL PROCEEDINGS AND MOOT
COURT

LEADING CASE
Food Corporation of India

vs.

M/S. Thakur Shipping Co. Ltd. & Ors,

1975 AIR 469, 1975 SCR (3) 146


STATEMENT OF FACTS

The appellant chartered two ships belonging to the 2 respondents for carrying rice from
Thailand to India. The Charter-party provided inter alia that any dispute should be referred
to 2 arbitrators one to be nominated by the owners and the other by the Charterers. The
appellant made claims against one respondent for damages for short delivery, and against
the other for damages for short delivery and damage in respect of the consignment of rice.
The appellant, thereafter, suggested to one of the respondents to agree to arbitration’ by a
single arbitrator, but there was no response from that respondent. The appellant also wrote
to the agents of the other respondent urging them to take steps for referring the dispute,
but the appellant only got evasive replies.

The appellant, a few days before the claims would be barred by time, filed suits against each
of' the respondents for recovery of the amounts claimed by it.

The respondents applied for stay of trial of the suits under S.34 of the Arbitration Act, 1940.
The trial court rejected the applications, but the High Court allowed the prayer for stay on
the ground that the decision of the trial court was perverse.

61.
JUDGEMENT

The Judgment of the Court was delivered by GUPTA, J. In these two appeals by special leave
the appellant, Food Corporation of India, challenges the correctness of two orders passed by
the High Court of Madras staying under sec. 34 of the Arbitration Act two suits for damages
it had instituted in the Court of the Subordinate Judge at Tuticorin. The question for
consideration is whether the first respondent in each of these two appeals, who are the first
defendant in the respective suits out of which these appeals arise, was " ready and willing to
do all things necessary to the proper conduct of the arbitration" as required by sec. 34. This
is really a question of fact and the trial court found that in neither case the defendant who
applied for stay satisfied this test. On appeal, the High Court stayed the suits reversing the,
decision of the trial court by two separate orders passed on the same day. Whether the High
Court acted rightly would depend upon the facts and circumstances of the two cases which
are essentially similar. It is necessary therefore to state briefly the facts leading to the
institution of the suits. The appellant Food Corporation of India, referred to hereinafter as
the Corporation, chartered two ships belonging respectively to M/s. Thakur Shipping Co.
Ltd. and the Great Eastern Shipping Co. Ltd. for carrying rice from Thailand to India. The
Charter-Party between the Corporation and the shipping companies contained a clause,
namely clause 42, which reads as follows:

The High Court pointed out that in each of these two suits the first defendant applied for
stay under sec. 34 as shown as they received the summons of the suit stating in the
application that they were ready and willing to have the dispute settled by arbitration. The
High Court held that the requirement of sec. 34 is satisfied if the defendant expresses his
willingness to go to arbitration at the earliest opportunity after the (1) A.I.R. 1943 Cal. 481.
suit is instituted; in our opinion the High Court was wrong in taking this view. Sec. 34 of the
Arbitration reads:

"Where any party to an arbitration agreement or any person claiming under him
commences any legal proceedings against any other party to the agreement or any person
claiming under him in respect of any matter agreed to be referred, any party to such legal
proceedings may, at any time before filing a written statement or taking any other steps in
the proceedings, apply to the judicial authority before which the proceedings are pending to
stay the proceedings; and if satisfied that there is no sufficient reason why the matter
should not be referred in accordance with the arbitration agreement and that the applicant
was, at the time when the proceedings were commenced, and still remains, ready and
willing to do all things necessary to the proper conduct of the arbitration, such authority
may make an order staying the proceedings."

62.
The observation of Das J. in Subal Chandra Bhur's case, on which the High Court relied, is
preceded by the following sentence: "Further, the readiness and willingness required by
see. 34 of the Act has to exist at the commencement of the legal proceedings and has to
continue up to the date of the application for stay". In Anderson Wright Ltd. v. Moran and
Company(1), this Court enumerating the conditions that should be fulfilled before a stay
may be granted under sec. 34 notes as one of the conditions that the applicant for stay
"should satisfy the court not only that he is but also was at the commencement of the
proceedings ready and willing to do everything necessary for the proper conduct of the
arbitration". It is thus quite clear on the authorities and from the terms of sec. 34 that the
readiness and willingness must exist not only when an application for stay is made but also
at the commencement of the legal proceedings. From the conduct of the first defendant in
either of these two suits the trial court found that they were not ready and willing to go to
arbitration at the time when the suits were instituted. This is a finding of fact and we are
afraid there was no valid ground in either case for interference with this finding. From the
letters written on behalf of the Corporation to the agents of the first defendant in the suit
giving rise to Civil Appeal 1519 of 1974 urging them to take steps for referring the dispute to
arbitration and the evasive replies sent to these letters, the trial court came to the
conclusion that the first defendant was not ready and willing to go to arbitration at the time
when the suit was instituted. We do not think this was an arbitrary or perverse conclusion
as the High Court characterized it. In our opinion the High Court went wrong in disregarding
relevant and significant material, namely, the correspondence that passed between the
parties, as "innocuous" and erred in disturbing the finding of fact for no valid reason.

Mr. Desai for the respondent relied on certain observations of this Court in Michael
Colodetz & Ors. v. Serajuddin and Company(1) in support of the proposition that the Court
should not allow a party to an arbitration agreement to proceed with the suit in "breach of
the solemn obligation to seek resort to the tribunal selected by him". It is however made
clear in that decision that these observations are subject to the terms of sec. 34, one of
which is that the other party to the agreement must remain "ready and willing to do all
things necessary for the proper conduct of the arbitration". The legal position is explained in
that decision as follows "The Court ordinarily requires the parties to resort for resolving
disputes arising under a contract to the tribunal contemplated by them at the time of the
contract. That is not because the Court regards itself bound to abdicate its jurisdiction in
respect of disputes within its cognizance, it merely seeks to promote the sanctity of
contracts, and for that purpose stays the suit.

63.
The jurisdiction of the Court to try the suit remains undisputed: but the discretion of the
court is on grounds of equity interposed......... It is for the court, having regard to all the
circumstances, to arrive at a conclusion whether sufficient reasons are made out for
refusing to grant stay. Whether the circumstances in a given case make out sufficient
reasons for refusing to stay a suit is -essentially a question of fact."

For the reasons stated above we think that the, appeals must succeed. Accordingly we allow
both the appeals and set aside the order of the High Court and restore that of the trial court
in each of these two cases. In Civil Appeal 1519 of 1974 the appellant will be entitled to its
costs in this Court and in the High Court against the contesting respondent. In Civil Appeal
1518 of 1974, considering all aspects, we direct the parties to bear their own costs
throughout.

64.
JUDGEMENT ANALYSIS

(1) Under Sec. 34, one of the conditions that the applicant for stay should satisfy the court is
that not only he is but also was, at the commencement of the proceedings, ready and willing
to do everything necessary for the proper conduct of the arbitration. Where a party to an
arbitration, agreement chooses to maintain silence in the face of repeated requests by the
other party to take steps for arbitration, the case is not one of mere inaction.
Failing to act, then a party is called upon to do so is a positive gesture signifying
unwillingness or want of readiness to go to arbitration especially when legal proceedings
in Court were about to be barred by time.
In the present case, one of the respondents sent evasive replies to the appellant in reply to
the appellant’s letter urging them to take steps for referring the dispute to arbitration.
As regards the other respondent, the appellant’s suggestion of a sole arbitrator was
contrary to the arbitration clause of the charter-party, but the appellant's deviation was not
a valid excuse for that respondent to remain silent and inactive. If the respondent was ready
and willing to go to arbitration, the respondent would have replied that it was not willing to
any departure from the arbitration clause, but it did not send any replies to the appellant or
do anything for reference of the dispute to arbitration according to the arbitration clause.
The trial court found as a fact that the respondents were not ready and willing to go to
arbitration at the time when the suit was instituted. Silence and inaction on their part may-
in the circumstances, very well justify the inference that they were not ready and willing to
go to arbitration.
The conclusion was not arbitrary or perverse and the High Court was wrong in so
characterizing it.

(2) It is true that a court should not allow a party to an arbitration agreement to proceed
with the suit in breach of the solemn obligation to seek resort to the tribunal selected by
him; but this is subject to the terms of s.34, one of which is that the other party to the
agreement must remain 'ready and willing to do all things necessary for the proper conduct
of the arbitration.

65.
PROJECT PROPOSAL

PART-E

DRAFTING, PLEADING AND CONVEYANCING, PRE-TRIAL


PREPARATIONS, PREPARATION IN TRIAL PROCEEDINGS AND MOOT
COURT

COURT VISIT
LIST OF CONTENTS

PARTICULARS PAGE NO.


1. Particulars and Dates of Visit 68
2. Purpose of Visit 68
3. Introduction 68
4. Jaipur District Court 69
5. Different Types of courts in Jaipur District Court 69

6. Structure of the court room 69


7. Function of court room staff 70

8. Hierarchy of prosecution 70

9. Cases 71-74

67.
PARTICULARS OF COURT VISIT

Name: - District & Session Court, Jaipur


Location: - Banipark, Jaipur

Date and Day of Court Visits


Date Day Time

07-12-2017 Thursday 10.00 AM TO 5.00 PM


19-02-2018 Monday 10.00 AM TO 5.00 PM

Purpose of Visit

The Purpose of the visit was to understand the working of a court. The nature of duties of
the judicial officers. The visit was to help us understand the role of court in dispensing
justice in any case, the role of prosecutors in a case, the way cases proceed in a court, the
way judges, prosecutors and defense lawyers handle the case, the relationship of the
prosecutors and the police. This gave us an opportunity to understand the actual need of
co-ordination in the four pillars of the justice system.

Introduction

Court – Court is an institution that the govt. sets up to settle disputes through a legal
process. People come to courts to resolve their disagreements. Court decides what really
happened and what should be done about it. They decide whether a person committed a
crime and what the punishment should be.

District Court- The district courts of India are presided over by a judge. They
administer justice in India at a district level. These courts are under
administrative and judicial control of the high court of the state or the district
state concerned belongs.

68.
Jaipur District Court-

District & Session court Jaipur district was established in 1956 itself. Court building was
shifted to new building premises on 21st March 2007 near mini Secretarial office Banipark,
Jaipur.

Different Types of courts in Jaipur District Court

1. Civil Judge and Rent Controller


2. District Judge/Add. Session Judge
3. Add. District Judge
4. Family Court
5. MACT
6. Chief Metropolitan Magistrate and Metropolitan Magistrate

Structure of the court room

The court is a hall consisting of a raised pavilion which has a podium for the Honorable
Judge with his reader and steno sitting on either side on the same podium.

The prosecutor and the defense counsel stands on the bench near typist. Between the two
counsels stands the witness & the accused stands besides the accused box.

The public standing attending the trial have seats provided behind the bench where the two
counsels stands.

Function of court room staff

Reader to the Hon’ble Judge:- He maintain all the case files of the cases being heard in the
court and prompts the judge with the various cases and other documents.

69.
Steno to the Hon’ble Judge:- He records the orders of the Hon’ble Judge.

Typist: - Types each and everything going in the court room.

Hierarchy of prosecution

 Director of Prosecution
 Public Prosecutor
 Chief Public Prosecutor
 Additional Public Prosecutor
 Assistant Public Prosecutor

70.
CASE 1

NAME OF THE COURT - Additional Civil Judge Metropolitan Magistrate – 10, Jaipur

Name of the Presiding Officer – Hon’ble Justice Mr. Arun Godara

CASE NO. – 471/2012, U/S 379 IPC DATE - 04/02/2012

TITLE OF THE CASE – State vs. Rahees Qureshi (Absconding Case)

OBSERVATIONS - In this case, accused Rahees Qureshi was not found to police authority.
The Hon’ble Court gives order to search the accused, Prosecution Witness (PW - 1) Motti
Dongri and on the report of SHO, Court declared accused absconding.

CASE 2

NAME OF THE COURT - Additional Civil Judge Metropolitan Magistrate – 51, Jaipur

Name of the Presiding Officer – Hon’ble Justice Mr. Arun Godara

CASE NO. – 775/2013, 776/13, U/S 379 IPC DATE - 02/03/2013

TITLE OF THE CASE – State vs. Chetram (Theft Case)

OBSERVATIONS - In this case, the Prosecution witness, Om Prakash, ASI, Gandhi Nagar.
This witness was concerning to the incident that he saw the accused at the spot of site of
incident. He gave evidence about site plan and arrestation of said accused.

71.
CASE 3

NAME OF THE COURT - Additional Civil Judge Metropolitan Magistrate – 51, Jaipur

Name of the Presiding Officer – Hon’ble Justice Mr. Arun Godara

CASE NO. – 1107/09, U/S 4/25, Arms Act DATE - 02/03/2009

TITLE OF THE CASE – State vs. Shahzad

OBSERVATIONS - In this case, the Prosecution witness 5, Om Prakash, ASI, Investigating


officer, Bapu Nagar. He gave evidence about all investigation related to statement of
witness site plan, arrestation of said accused and other part of the investigation.
Prosecution witness 6, Rao Karan is concerning to seize meme of Motor cycle.

CASE 4

NAME OF THE COURT - Additional Session Court, Jaipur

Name of the Presiding Officer – Hon’ble Justice Rekha Rathore

CASE NO. – 172/14, U/S 498A, 406 and 306 IPC DATE - 12/02/2016

TITLE OF THE CASE – State vs. Lekh Raj (Dowry Case)

OBSERVATIONS - The victim Neelam committed suicide by hanging herself. This suicide
was thw result of continous exploitation of the victim by her husband Lekh Raj. She was
being tortured by him on regular basis. According to the reports, Lekhraj & Neelam married
10 years ago and had 2 kids. KekhRaj used to drink a lot, after he tortured her who was
against the drinking habit and opposed it but the accused never paid heed to his wife. As a
result of which she hung herself to death. On the Present day, two witnesses were present
in the court & their testimony was recorded.

72.
 PW-1 Moti Devi who was the neighbour of the couple turned hostile in the court
session and denied the fact that accused drunk a lot and used to torture Neelam.
Moreover, she gave information regarding the problems that the victim had with
her brother related to property.
 PW-2 Kamla Devi who was the neighbour of the couple turned hostile in the court
session and denied the facts that were any problem between the accused & the
victim.

The victim was read over and explained to the accused but he denied and claimed a trial.
The decision of the case is pending as many more witnesses are yet to be turned up for their
respective statements in the coming days.

CASE 5

NAME OF THE COURT - Additional Civil Judge Metropolitan Magistrate – 17, Jaipur

Name of the Presiding Officer – Hon’ble Justice Mr. Arun Godara

CASE NO. – 204/15, U/S 379 IPC DATE - 03/05/2015

TITLE OF THE CASE – State vs. Gopal (Theft Case)

OBSERVATIONS - In this case, the Prosecution witness 1, Aahad Khan, DYSP. This witness
was concerning to charge sheet in this case. He gives evidence about filling charge sheet in
the court.

73.
CASE 6

NAME OF THE COURT - Upper District and Session Court, Jaipur

Name of the Presiding Officer – Hon’ble Justice Mr. Praveen Kumar

CASE NO. – 09/13, U/S 344,370,374,378 of IPC DATE - 12/02/2016

TITLE OF THE CASE – State vs. Mohd. Irshad and Ors.

OBSERVATIONS - This case is filed u/s 344, 370, 374 and 378 of IPC for wrongful
confinements, disposing of a person as a slave, unlawful compulsory labour & theft and u/s
23 and 26 of child Labour Prohibition and Regulation Act. As per Police Investigation Report,
some children work daily from 6.00 a.m. to 11 p.m. in rigorous conditions.

The charged was read over & explained to the accused but they denied & claimed another
trial. The decision of the case is pending as many more witnesses are yet to be turned up for
their respective statements in the coming days & many evidences are to be looked into. The
court has asked the police for further investigation into the matter. The case is adjourned
for the next proceeding.

74.
BIBLIOGRAPHY

I. BOOKS , DIGESTS, COMMENTARIES

1. M.P. Jain. , Indian Constitution Law (LaxisNexis , New Delhi , 7th Edn, 2015)

2. V.N. Shukla , Constitution of India (Eastern Book Co., New Delhi 12th Edn; 2013)

3. Dr. J. N. PANDAY, Constitutional Law of India ( Central Law Agency ; 54th Edn.

2017)

4. DR.DURGA DAS BASU Constitution of India 20th edition published by Lexis Nexis

Butterworth Wadhwa Nagpur

5. DR. G.P. TRIPATHI Constitutional Law 1st edition 2013

II. DICTIONERIES

 Black’s Law Dictionary .

 Bryan A. Garner , Black’s law Dictionary (9th Edn., 2009)

III. WEBSITE REFFERRED

 www. scconline .com

 www.Manupatra. com.

 www.Supreme Court of India.

 www.lexisnexis.com
 www.bloomsburgycollection.com

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