Participant Code: TC-04

Before

THE HONORABLE SUPREME COURT OF WESTROSTAN

ORIGINAL WRIT JURISDICTION

U/A 32
OF
THE CONSTITUTION OF REPUBLIC OF WESTROSTAN

ASHANT ROSHAN AND OTHERS (APPELLANT)

VERSUS

UNION OF WESTROSTAN (RESPONDENT)

MEMORANDUM ON THE BEHALF OF THE APPELLANT

COUNSEL ON THE BEHALF OF THE APPELLANT

UPON SUBMISSION TO THE HON’BLE CONSTITUTION BENCH OF THE

SUPREME COURT

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 TABLE OF CONTENTS

S. No. DELINEATIONS PAGE

1. INDEX OF AUTHORITIES 3-4

2. STATEMENT OF JURISDICTION 5

3. STATEMENT OF FACTS 6

4. STATEMENT OF ISSUES 7

5. SUMMARY OF ARGUMENTS 8

6. ARGUMENTS ADVANCED 9-28

7. PRAYER 29

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 INDEX OF AUTHORITIES

JUDICIAL PRECEDENTS

 FOOD CORPORATION OF INDIA VS. KAMDHENU CATTLE FEED

INDUSTRIES [1993 (1) SCC 71]
 COUCH VS. UNITED STATES 409 US 322 (1973)
 RAMESH DALAL VS. UNION OF INDIA 1988 AIR 775, 1988 SCR (2) 1011
 KRISHNAMOORTHY VS. SIVAKUMAR AND OTHERS (2015) 3 SCC 467
 UOI VS. ASSOCIATION FOR DEMOCRATIC REFORMS AND ANR(2002) 5
SCC 294

 PUBLIC INTEREST FOUNDATION AND OTHERS VS. UNION OF INDIA,

WRIT PETITION(CIVIL) NO.536 OF 2011, DECIDED IN 2018
 BAL PATIL VS.UNION OF INDIA (2005) 6 SCC 282
 STATE OF KERALA V. N.M. THOMAS (1976) 2 SCC 310
 EVERSON VS. BOARD OF EDUCATION 330 U.S 1 (1947)
 T.R. KOTHANDARAMAN VS. T.N WATER AND SUPPLY AND DRAINAGE
BOARD (1994) 6 SCC 282
 S.R.BOMMAI VS UNION OF INDIA .[AIR (1994) SC 1918]
 KESAVANANDA BHARTI VS. STATE OF KERELA (1973) 4 SCC 225
 19. RAM NANDAN V STATE, AIR 1966 PATNA 438.
 20. NAGA PEOPLE'S MOVEMENT OF HUMAN RIGHTS VS. UNION OF INDIA,
(1998) 2 SCC 109 : AIR 1998 SC 431
 H.S. JAIN V. UNION OF INDIA 1993 (4) SCC 120
 STATE OF RAJASTHAN V UNION OF INDIA AIR 1977 SC 1361
 MANEKA GANDHI VS. UNION OF INDIA 1978 AIR 597
 SAKAL PAPERS (P) LTD. AND ORS. VS. UNION OF INDIA [1962] 3 S.C.R 842

 SANSKAR MARATHE VS. STATE OF MAHARASTRA AND OTHERS 2015

SCC ONLINEBOM 587
 ROMESH THAPPAR VS. STATE OF MADRAS [1950 S.C.R 594 ]
 KEDARNATH SINGH VS. STATE OF BIHAR 1962 AIR 955
 P ALAVI VS. STATE OF KERALA 1982 KLT 205
 ARUN JAITLEY V STATE OF UTTAR PRADESH AIR 2015 ALL. 382
 STATE OF WEST BENGAL V COMMITTEE FOR PROTECTION OF
DEMOCRATIC RIGHTS52 (2010) 3 SCC 571
 JOGINDER KUMAR VS. STATE OF UP (1994) 4 SCC 20
 RAM JETHMALANI VS. UNION OF INDIA 2011) 8 SCC 1
 BABULAL JAMNADAS PATEL VS. STATE OF GUJARAT2009) 9 SCC 610
 VINEET NARAIN VS. UNION OF INDIA59 1996) 2 SCC 19
 BHARATI TAMANG VS. UNION OF INDIA 2013) 15 SCC 578
 KHARAK SINGH VS. STATE OF UTTAR PRADESH 8 [1964]SCC 332
 K. CHANDRASEKHAR VS. STATE OF KERELA (1996)SCC ONLINE KER 273:
(1996) 2 KLJ 736

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 LIST OF BOOKS

 INDIAN PENAL CODE 1860 BARE ACTS

 CRIMINAL CODE OF PROCEDURE 1973 BARE ACTS
 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA,
10973 (8TH ED.2010)

LIST OF STATUTES

 THE CONSTITUTION OF INDIA, 1949

 THE CODE OF CRIMINAL PROCEDURE, 1973
 THE INDIAN PENAL CODE,1860
 THE PEOPLE’S REPRESENTATION ACT,1951
 THE ARMED FORCES (SPECIAL POWERS) ACTS (AFSPA),1958
 THE CIVIL DEFENCE ACT, 1968.
 THE POLICE ACT OF 1861

LEGAL DATABASE

 WWW.SCCONLINE.COM
 WWW.INDIANKANOON.COM
 WWW.HINDU.COM
 WWW.ADVOCATEKHOJ.COM
 WWW.CASEMINE.COM

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 STATEMENT OF JURISDICTION

The appellants have approached the Hon’ble Supreme Court of Westrostan under Article 32
of the Constitution of Republic of Westrostan. Appeal has been accepted by this Hon’ble
Court and the matter has now been listed for arguments.

The provision under which the appellant has approached this Hon’ble Court and to which the
respondent humbly submits, is read herein under as:-
Article 32: Remedies for enforcement of rights conferred by this Part:
1. The right to move the Supreme Court by appropriate proceedings for the enforcement
of the rights conferred by this Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and
certiorari, whichever may be appropriate, for the enforcement of any of the rights
conferred by this Part.

The Hon'ble Supreme Court has clubbed the issues enlisted in statement of facts as per the
provisions of the Constitution; hence the appeal enlists 'State Of Uttaravale' as the second
appellant.
The State has appealed under Article 131: Original Jurisdiction of the Supreme Court.
The State has also appealed under Article 132: Civil Appellate Jurisdiction of the
Supreme Court in appeals from the High Court in certain cases.

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 STATEMENT OF FACTS

The Republic of Westrostan, an Independent nation consisting of 6 states. This petition

reflects a turmoil in the northern state of Uttaravale. The country has overwhelming majority
of Wesdu religion followers, yet ideal of 'Unity in Diversity' is evident. Attaining
independence from the rule of dynastic kingdoms in 1947, the constituent assembly initiated
the process of drawing up a constitution which established ideals of Democracy and
Secularism, encompassing values of Human dignity and Equality.

FACTS IN ISSUE TO BE DISCUSSED IN APPEAL BEFORE THE SUPREME COURT:

● Appellant 1 contends that the founding fathers had not envisioned the present standing of the
country's political system. Corruption, nepotism, administrative inefficiency and
criminalization in politics have increased in India. Also, communal politics is on the rise
owing to the prevalent religion based riots. The minorities being persecuted in name of
protectionist vigilantism.
● The situation has led to insurrection and rebellion by the same group masquerading as
liberals. The brawl between 'assembly of revolutionaries' and 'the security agencies' has
rendered the states defunct causing a lapse in peace and order. To be wield this, 'Operation
Broom' of the Union government in 2017 was initiated which led the state into vegetative
chaos. The arrest of the human right activists on charges of sedition has aggravated the
situation, giving a rise to the demand of SIT probe into such arrests.
● The Union government has 'usurped' all power of the state and has declared Internal
emergency in the State of Uttaravale, in name of interference by the State government in
'Operation Broom' and on a charge that the functioning of the state government has rendered
the state a breeding ground of disorder and rebellion.

The Constitutional, legal and policy framework of the Republic of Westrostan is in pari
materia to the Republic of India.

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 STATEMENT OF ISSUES

1. WHETHER DYNASTIC AND COMMUNAL POLITICAL PARTIES VIOLATE THE

DEMOCRATIC AND SECULAR PRINCIPLE OF WESTROSTAN’S CONSTITUTION.
WHETHER THE SUPREME COURT SHOULD LAY DOWN GUIDELINES
REGARDING IT?

2. WHETHER PROVISIONS OF 42ND AMENDMENT, 1976 WHICH ADDED ENTRY 2A

IN UNION LIST AND ALSO AMENDED ENTRIES 1 AND 2 OF STATE LIST
VIOLATES THE BASIC STRUCTURE OF THE CONSTITUTION. ALSO WHETHER
THESE PROVISIONS IN THEIR PRESENT FORM ALLOW THE CENTRAL FORCES
TO COMPLETELY TAKE OVER LAW AND ORDER IN THE STATE? WHETHER THE
SITUATION PREVAILING IN UTTARAVALE WARRANTED SUCH EXTREME
MEASURES?

3. WHETHER THE PROCLAMATION OF PRESIDENT RULE IN STATE OF

UTTARAVALE IS CONSTITUTIONALLY VALID OR NOT?

4. WHETHER SIT SHOULD BE CONSTITUTED FOR INVESTIGATION INTO ARREST

OF ACTIVISTS.

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 SUMMARY OF ARGUMENTS

1. The Dynastic and Communal political parties violate the democratic and secular
principle of Westrostan’s Constitution. The Supreme Court should lay down guidelines
to de-recognize such parties or suggest some other reforms regarding it.

The Constitution of Westrostan embraces the principles and values of Democracy and
Secularism, widely and they form the very essence of it. Presence of dynasts and communal
parties erodes the basic principles and structure of this setup. The founding forefathers of our
constitution never envisioned such political scenario in our country. Dynastic and communal
politics is taking us back to the days of despotic monarchies. It violates the republican and
secular nature of the nation. Some reforms needs to be suggested by the Honourable court to
curb the prevailing circumstances present in the nation.
2. The provisions of 42nd amendment, 1976 which added entry 2A in Union list and also
amended Entries 1 and 2 of state list does violate the basic structure of the Constitution.
Also these provisions in their present form allow the central forces to completely take
over law and order in the state and the situation prevailing in Uttaravale did not
warrant such extreme measures.

The State government as encoded has the sole authority on legislating on public order and
police. How is the 42nd Amendment to our constitution not ultra vires then? By usurping
power in garb of Article 355 and with provisions of AFSPA' 1958, the Central government
enjoys paramountcy and a right to arbitrary action under Entry 2A of Union List. They are
exceptions and have to be resorted to only occasionally to meet the exigencies of the special
situations. The exceptions are not a rule. Now, the present situation cannot be told to be one
of an emergency where the state had an internal disturbance as stated in Art.355 so as to
justify union’s intervention in the State.
3. The Proclamation of President Rule in State of Uttaravale was Unconstitutional.
It is submitted that the dismissal of the Government of Uttaravale was unconstitutional as:
firstly, it was not in accordance to the constitutional provision of Art.356; secondly, it was not
in conformity with the constitutional democratic and federal structure. In the present
situation, The government of Uttaravale had the legal capability to tackle the situation at
hand, which was an ongoing trouble with the Red walkers. The condition was not one
wherein the state could not run in accordance with the constitution so as to attract Article
356.
4. SIT should be constituted for investigation into arrest of activists.
The arrest of the human right activists is unlawful and in violation of the fundamental rights
guaranteed under the Constitution. The accused have been deprived of his right to life and
personal liberty due the false sedition charges made against him. This is a clear case of
unlawful arrest to suppress the voices of opposition due to difference in political opinions.
There is an urgent need of impartial and fair investigation into the matter and therefore, a
Special Investigation Team must be constituted.

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 ARGUMENTS ADVANCED

At the outset, it is submitted that the Constitution of Westrostan is analogous to the

Constitution of India.

[1] THE DYNASTIC AND COMMUNAL POLITICAL PARTIES VIOLATE THE

DEMOCRATIC AND SECULAR PRINCIPLE OF WESTROSTAN’S
CONSTITUTION. THE SUPREME COURT SHOULD LAY DOWN GUIDELINES
TO DE-RECOGNIZE SUCH PARTIES OR SUGGEST SOME OTHER REFORMS
REGARDING IT.

1. It is humbly submitted before this honourable court that the Constitution of Westrostan
embraces the principles and values of Democracy and Secularism widely and they form the
very essence of it. Presence of dynasts and communal parties erodes the basic principles and
structure of this setup. The founding forefathers of our constitution never envisioned such
political scenario in our country. Dynastic and communal politics is taking us back to the
days of despotic monarchies. It violates the republican and secular nature of the nation. It
has been urged by the petitioners that parties which engage in such practices should either be
de-recognized by the election commission of India or some other reforms must be laid down
by the honourable court to bring such practices to rest.

[1.1] DRASTIC EFFECTS OF POLITICAL DYNASTIES AND COMMUNALISM ON

EFFECTIVE GOVERNANCE

2. The Constitution of Westrostan is both a legal as well as a social document. It provides

machinery for the governance of the country. It also contains the ideals expected by the
nation. The political machinery created by the constitution is a means to the achieving of
these ideals. What happens when this political machinery becomes inefficient and corrupt in
its ideals and conduct to govern the country due to presence of dynasts and communalism in
politics?
3. It is pleaded by the counsel that politics dominated by a few dynasties like the ‘Everything
family party’ in the present case, perpetuates corruption, nepotism, administrative
inefficiency and criminalisation in politics. Dynastic politics stagnates the power into the
hands of a few without rotation of power and there is a little or no accountability of the
leaders. Dynasts in politics leaves the voters with less choice and hinders the development by
first filling the treasure chest for the family and then distributing the remains to the citizens. It
not only makes the agenda shift from the “welfare of the state” to “welfare of the clan” but
also dilutes the essence of democracy with corruption and favouritism.

[1.1.1.] DYNASTIC POLITICS ACCOMPANIES CORRUPTION AND

ADMINISTRATIVE INEFFICIENCY INTO THE SYSTEM
4. It is very well known that corruption and favouritism promotes illegality, unethicality,
subjectivity, inequity, injustice, waste inefficiency inconsistency in the administrative

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 conduct & behaviour. It destroys the moral fabric of society & erodes the faith of the
common man in the legitimacy of the politico-administrative set up. It is the legitimate
expectation of every citizen in all forms of the government all over the world especially in a
democratic country like Westrostran which promises every aspect of equality under
ARTICLE 14-18 of the constitution1 to be treated in equality and equity in every step of the
politico-administrative set up. In Food corporation of India vs. Kamdhenu cattle feed
industries2, the Supreme Court elaborated on the doctrine of legitimate expectation and held,
“The duty to act fairly on part of the public authorities entitles every citizen to have
legitimate expectation to be treated in a fair manner & it is imperative to give due importance
to such an expectation in order to satisfy the requirement of non-arbitrariness in state action
or otherwise it may amount to abuse of power”.
5. Dynastic politics hampers the legitimate expectation of the people, hindering the spirit of the
constitution giving political inequality free rein. Citing a foreign case the Supreme Court
stated, “Respect for constitutional principles is eroded when they leap their proper bounds to
interfere with the legitimate interests of society in enforcement of its laws.”3

[1.1.2] CRIMINALIZATION IN POLITICS DUE TO PRESENCE OF DYNASTIES

6. Criminalisation of politics introduces a culture of violence in the society and bad precedence
for the youth to follow, also leading to obstruction in the process of justice. Section 8 of the
Representations of the people’s act 1951 lists a certain offences in which, if a person is
convicted of any of them, disqualifies him from being elected or continuing as a member of
parliament or legislative assembly.
7. It is submitted by the petitioners that the apex court in its various previous judgements have
also laid down precedents in the favour of decriminalisation of politics. In Ramesh Dalal vs.
Union of India4, the SC held that a sitting MP or MLA shall also be subject to
disqualification from contesting elections if he is convicted and sentenced to not less than 2
years imprisonment by a court of law. In another case, the SC held that disclosure of criminal
antecedents of a candidate at the time of filing of nomination paper as mandated by law was
categorically imperative5.

1. The Constitution of India,1949

2. [1993 (1) SCC 71]
3. Couch vs. United States 409 US 322 (1973)
4. 1988 AIR 775, 1988 SCR (2) 1011
5. Krishnamoorthy vs. Sivakumar and others (2015) 3 SCC 467

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 In UOI vs. Association for democratic reforms and anr.6, the SC held that every
candidate contesting an election to the parliament, state legislature or municipal corporation,
has to declare their criminal records, financial records and educational
qualifications along with their nominal paper. The court while deciding a case, left the matter
of disqualification of politicians carrying criminal charges against them to the legislation but
made the direction that parliament must legislate on the matter to ensure that candidate with
criminal antecedents do not enter public life or become law makers.7

[1.1.3] INFRINGEMENT OF RIGHTS OF MINORITIES DUE TO COMMUNALISM

IN POLITICS

8. The Preamble of the Constitution speaks of promoting Fraternity, thereby assuring the
dignity of the individual and the unity & integrity of the nation while granting to its citizens
liberty of belief, faith and worship. The constitution abhors discrimination on grounds of
religion etc. and enshrines various provisions for the protection of the rights and interest of
the minorities and to provide ‘equal opportunity and status’ to all the citizens of the country.
The Constitution through all its organs is committed to protect religious, cultural and
educational rights of all. Articles 25 to 30 guarantee cultural and religious freedoms to both
majority and minority groups. Ideal of a democratic society, which has adapted right to
equality (Article 14-18) as its fundamental creed, should be elimination of majority and
minority and so-called forward and backward classes8.
9. Selective persecution of minorities and killing them in the name of protection of a sacred
animal violates the spirit of these provisions causing riots between communities transgressing
the republican and secular nature of the nation. Such acts of the union government not only
causes inequality in the nation infringing the rights of the citizens but also hampers the spirit
of the constitution. In State of Kerala v. N.M. Thomas9, it held that Articles 14, 15, and 16
are all equality rights, and that the scheme of equality must be sought to achieve real equality.
It is the duty of the state and the government to maintain peace, order and harmony in the
country.

6. (2002) 5 SCC 294

7. Public Interest Foundation and others vs. Union of India, writ Petition(Civil) No.536 of 2011, decided in 2018
8. Bal Patil vs.Union of India (2005) 6 SCC 282
9. (1976) 2 SCC 310

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 Use of religion unapologetically as a tool of politics by parties like the ‘Everything ban party’
undermines the values and principles enshrined in the constitution. To work together as a
country in achieving its goal, the rights of all the citizens of the country needs to be respected
and protected. “The golden triangle of our Constitution is composed of Articles 14, 19 and
21. Incorporation of such a trinity in our paramount parchment is for the purpose of paving
such a path for the people of India which may see them close to the trinity of liberty, equality
and fraternity10.”

[1.1.4] SEPARATION OF RELIGION FROM POLITICS

10. It is very well established that Secularism is one of the most basic features of the Preamble
but its validity as one of the most basic features of the Constitution and its practicability in
our society is questionable. There is an increasing use of religion in the social construction of
ethnic and communal identity which is made the basis for the articulation of common
economic interest and political mobilization. In Everson vs. Board of Education11, the
Supreme Court of America declared that there must be a wall of separation between the
Church and the state, as religion is a matter which lies solely between a man and the God and
that he owes account to none other than his faith and his worship.

11. Dr. S. Radhakrishnan, the former President of India stated that “Secularism is embedded in
our constitutional values. When India is said to be a secular state, it does not mean that
we exault irreligion rather that the Indian state will not identify itself with any
particular religion.” The Indian constitution has spelt out various provisions regarding the
secular state even before the term ‘Secularism’ was introduced in the Preamble in 1976.
Articles 14,15,16, 25,26,27,28,29,30,325 all incorporate the principles of:
● Freedom of Religion to individuals as well as to communities
● Equality of citizenship and no discrimination on grounds of religion
● Separation of state from religion

10.T.R. Kothandaraman vs. T.N Water and Supply and Drainage Board (1994) 6 SCC 282
11.330 U.S 1 (1947)

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 Not only in fundamental rights protected by the right to constitutional remedies, but the
principle of secularism has been incorporated in the Directive principles of State Policy and
fundamental duties as well. In DPSP, the Article 38, 39, 39A, 41 & 46 not only attempt to
promote equal opportunity for growth & substance for all but these principles coupled with
the most basic objective of the state of ‘Parens Patriae’ promotes secularism in all its form.

12. The state is enjoined to accord equal treatment to all religions. The above provisions of the
constitution by implication prohibit the establishment of a theocratic state & prevent the state
from identifying itself with favouring any particular religion. The religion matters should,
therefore, be regarded entirely as relating to the conscience of the individuals.
In S.R.Bommai vs Union of India12, the Supreme Court held that “Secularism is one of the
basic features of the constitution. While the freedom of religion is guaranteed to all the
citizens but from the point of view of the state, the religion, faith or belief of a person is
immaterial. To the state, all are equal and are entitled to be treated equally. And if the
Constitution requires the state to be secular in thought and action, the same requirement
attaches to the political parties as well. The constitution neither recognizes nor permits
mixing of religion and state power, both must be kept apart. Any state government which
pursues non secular policies or non secular course of action acts contrary to the constitutional
mandate. Given the above position, it is clear if any party or organisation seeks to fight the
elections on the basis of a plank which has the proximate effect to eroding the secular
philosophy of the constitution would certainly be guilty of following an unconstitutional
course of action. It is clear from the constitutional scheme that it guarantees equality in the
matter of religion to all individuals and groups irrespective of their faith emphasising that
there is no religion of the State itself.

13. The Constituent Assembly aware of the danger of communalism passed a resolution after
attaining Independence`on April 3, 1948 “whereas it is essential for the proper functioning
of democracy and growth of national unity and solidarity that communalism should be
eliminated from Indian life, this Assembly is of the opinion that no communal
Organisation which by its constitution or by exercise of discretionary power vested in
any of its officers and organs admits to, or excludes from, its membership persons on
grounds of religion, race and caste, or any of them should be permitted to engage in any
activities other than those essential for the bona fide religious, cultural, social and
educational needs of the community, and that all steps, legislative and administrative,
necessary to prevent such activities should be taken."

12 .[AIR (1994) SC 1918]

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 In Kesavananda Bharti vs. State of Kerela13, while discussing the basic structure doctrine
the Supreme Court declared that” the basic structure of the constitution is resisting on the
basic foundation of the constitution. The basic foundation of the constitution is the dignity
and the freedom of its citizens which is of supreme importance and cannot be destroyed at
any legislation of the parliament. In no uncertain terms secularism is a part of the basic
structure of the constitution. Therefore whatever may be the political machination over it,
secularism remains and shall remain the bedrock of Indian constitutional democracy.”

[1.2] RECOMMENDATIONS TO LAY GUIDELINES DOWN ON ELECTORAL

DISQUALIFICATION AND OTHER REFORMS

14. Nations and their governments strive for the Development and welfare of its people. In a
democratic setup such as ours, politicians- the representatives- the law makers, and the
people lay foundation for the development. And it is the Election Commission which is
vested under Article 324 of Constitution with the duty of conducting free and fair elections in
the country. Mere conducting of elections periodically doesn’t prove that we are republic and
have an effective democracy. It is the way elections are held, the quality of people elected,
their performances that make our democracy effective. In current scenario, the widespread
disillusion in our political system is well visible.
15. It is urged by the petitioners that it is the need of the hour for the Supreme Court to lay down
some guidelines regarding the de-recognizition of parties which are engaged in practices that
violate the democratic and secular principle of the constitution or suggest some other reforms
to curb prevailing of such practices. A number of commissions and committees have
examined the issue of these practices and various recommendations have been brought
forward regarding the same.
● The law commission in its report14 on electoral reforms had put forward
recommendations on electoral disqualifications for decriminalisation of politics.
● Election Commission in its proposed electoral reforms15 recommended that persons
charged with cognizable offences should be barred from contesting in the elections at the
stage when the charges are framed by the competent court.
● 2nd Administrative reforms commision in its report on ethics in governance16, also
made the recommendations that Section 8 of the Representation of people,s act needed to
be ammended to disqualify all persons facing charges related to grave and heinous
offences and corruption where charges have been framed six months before the election.

13. (1973) 4 SCC 225

14. 244th report titled “Electoral disqualifications”
15. 2016 report
16. 4th report, 2008

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  The Liberhan Ayodhya Commission of Inquiry recommended, inter alia, that
complaints of misuse of religion for electoral gain should be speedily investigated into
by the Election Commission.

16. Despite landmark judgements delivered by the SC and efforts by the ECI, the system
continues to be prone to mischief. To stamp out these tendencies, there is a need to strengthen
the EC to punish errant politicians and defiant political parties. Maintaining the sanctity of
electoral process requires a multi-pronged approach, including removing criminal elements
and moneybags in politics, disposing poll petitions, introducing internal democracy and
financial transparency in the functioning of the political parties. The use of religion, caste,
community, tribe, and any other form of group identity for electoral gain or for gathering
political support should not be allowed and the Representation of the People Act, 1951,
should be suitably amended to then give the Election Commission powers to take deterrent
actions against those candidates and political parties who resort to such actions, should
include, but not limited to, disqualifying candidates from contesting elections and de-
registering the offending political parties. Political parties should also not be allowed to use
overtly religious, caste, community, tribe, and other such expressions and words in their
names.
17. It is humbly submitted before the honourable court that election is a soul of Democracy, that
not only nourishes the faith of common person in the ideals of democracy but also protect the
nation from the threat of authoritarian politics. Weak electoral system is a biggest threat not
only to the national integration but also to the Democratic Consolidation of Westrostan.
Electoral Reforms of radical nature can only save this glorious nation from political
deterioration. Sanctity and purity of Elections must be protected at any cost, as the future of
India depends on it.

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 [2] THE PROVISIONS OF 42ND AMENDMENT, 1976 WHICH ADDED ENTRY 2A
IN UNION LIST AND ALSO AMENDED ENTRIES 1 AND 2 OF STATE LIST DOES
VIOLATE THE BASIC STRUCTURE OF THE CONSTITUTION. ALSO THESE
PROVISIONS IN THEIR PRESENT FORM ALLOW THE CENTRAL FORCES TO
COMPLETELY TAKE OVER LAW AND ORDER IN THE STATE AND THE
SITUATION PREVAILING IN UTTARAVALE DID NOT WARRANT SUCH
EXTREME MEASURES.

18. The provisions in issue are read as here-in-under; SCHEDULE 7 (Article 246)
UNION LIST: Entry 2A: Deployment of any armed forces of the Union or any other force
subject to the control of the Union or any contingent or unit thereof in any State in aid of the
civil power; powers, jurisdiction, privileges and liabilities of the members of such forces
while on such deployment.
STATE LIST: Entry 1: Public order (but not including [the use of any naval, military or air
force or any other armed force of the Union or of any other force subject to the control of the
Union or of any contingent or unit thereof] in aid of the civil power).
Entry 2: Police (including railway and village police) subject to the provisions of entry 2A of
List I.
In addition to this Article 257A was also introduced by the said amendment reading in
provisions on the same line of Entry 2A Union List, however, stands repealed by the 44th
Amendment to the Constitution.
19. In the learned judgment of Kesavananda Bharati v. State of Kerala17 the doctrine of Basic
Structure was established. The excerpt of the named precedent is as follows: “The true
position is that every provision of the Constitution can be amended provided in the result the
basic foundation and structure of the constitution remains the same.” In the judgment, some
of the basic features of the constitution were listed by the judges:
 Supremacy of the Constitution;
 Republican and Democratic forms of Government;
 Secular character of the Constitution;
 Separation of powers between the legislature, the executive and the judiciary;
 Federal character of the Constitution.

The above structure is built on the basic foundation, i.e. the dignity and freedom of the
individual. This is of supreme importance. This cannot by any form of amendment be
destroyed.
20. In S.R. Bommai vs. Union of India18, it was established by the Honourable court that states
have an independent constitutional existence and they have as important a role to play in the
political, social, educational and cultural life of the people as the Union. They are neither
satellites nor agents of the Centre. The fact that during emergency and in certain other
eventualities their powers are overridden or invaded by the Centre is not a normal feature of
the Constitution.

17. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.

18. S.R. Bommai vs. Union of India [AIR (1994) SC 1918] Para 99

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 They are exceptions and have to be resorted to, only occasionally to meet the exigencies of
the special situations. The exceptions are not a rule. Now, the present state in Uttaravale was
not one of an emergency wherein the state could have been said to be internally disturbed as
suggested by Art.355 so as to justify Union’s intervention in the State. Internal disturbance
means a rebellion or insurrection and not an ordinary breach of public peace.19

21. The Rule of law established since the inception of the Republic, has itself conferred most of
the ideals included in the Basic structure, however, the Federal Character has not been given
the due regard it holds. Nostalgia of the integration of the Union brings into focus the desire
of segmented states to be one in unity. The intention of accession was not to be governed but
to maintain order and uniformity in co-existence. The bona fide intention in action of
provinces, in the past, has been mired by contemporary Union politics. The present situation
stands to be a classic example as to how the union had virtually taken over the law and order
of the State of Uttaravale arbitrarily using the provision of 2A; the word “aid” postulates the
continued existence of the authority to be aided. This would mean that even after deployment
of armed forces the civil power will continue to function.20 But here, the union completely
took over the law and order of the state. It is further urged that the expression "civil power" in
Entry 1 of the State List as well as in Entry 2A of the Union List refers to civil power of the
State Government and not of the Central Government.21

22. Some statutory provisions as would be mentioned below, again stand to be a stark example of
how the union has riddled with the federal character as provided by the constitution.

2.1 THE PARADOX OF STATUTORY PROVISIONS

23. As per provisions of Section 3, Armed Forces Special Powers Act' 1958 (AFSPA' 1958), the
sole authority is vested in central government, governor of a state or an administrator of
union territory to declare an area to be disturbed. The counsel humbly asks the Hon'ble courts
attention on appointment procedure of the aforesaid 2 authorities.
Article 156: The governor holds the office during the pleasure of the President.
Article 239: Every union territory is administered by the President, acting to such extent as he
thinks fit, through an administrator appointed.
Furthermore, per Article 74, there is a Council of Ministers headed by the Prime Minister to
aid and advice the President who shall accordingly follow the advice.
On perusal of aforementioned provisions it is evident that there lies no real line of distinction
between the three authorities to declare an area 'disturbed'. It is the Central Government in all
three alternatives, de facto, which has the discretion.

19. Ram Nandan v State, AIR 1966 Patna 438.

20. Naga People's Movement of Human Rights vs. Union Of India, (1998) 2 SCC 109 : AIR 1998 SC 431
21. Naga People's Movement of Human Rights vs. Union Of India, (1998) 2 SCC 109 : AIR 1998 SC 431

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24. In contemplation of entry 1 is that in deployment of armed forces of Union in aid of civil
power in state, the said forces shall operate in co-operation of State government to effectively
deal with the situation until normalcy achieved. Contrary to this, The Police Act of 1861, in
sub-section (1) of 15, empowers the state Government to issue a proclamation declaring that
any area subject to its authority has been found in a disturbed or in a dangerous state and
thereupon in exercise of the power conferred under sub-section (2) the Inspector General of
Police or other officer authorised by the State Government in that behalf can employ and
police force in addition to the ordinary fixed complement, to be quartered in the area
specified in such proclamation. Sub- section (6) of Section 15 prescribes that every such
proclamation issued under sub-section (1) shall indicate the period for which it is to remain in
force, but it may be withdrawn at any time or continued from time to time for a further period
or periods as the State Government may in each case think fit to direct. The Police Act makes
no provision for deployment of armed forces.
25. The State government as encoded has the sole authority on legislating on public order and
police. How is the 42nd Amendment to our constitution not ultra vires then? By usurping
power in garb of Article 355 and with provisions of AFSPA' 1958, the Central government
enjoys paramountcy and a right to arbitrary action.
26. It was also observed by the learned judges in Naga People's Movement of Human Rights vs.
Union of India, that the primary task of the armed forces of the Union is to defend the
country in the event of war or when it is faced with external aggression. A situation of
internal disturbance involving the local population requires a different approach. Involvement
of armed forces is handling such a situation brings them in confrontation with their
countrymen. Prolonged or too frequent deployment of armed forces for handling such
situations is likely to generate a feeling of alienation among the people against the armed
forces who by their sacrifices in the defence of their country have earned a place in the hearts
of the people. It also has an adverse effect on the morale and discipline of the personnel of
the armed forces. It is, therefore, necessary that the authority exercising the power make such
a declaration so exercises the said power that the extent of the disturbed area is confined to
the area in which the situation is such that it cannot be handled without seeking the aid of the
armed forces. But herein, the attention should be brought to the definition of, Internal
Disturbance as explained by Durga Das Basu in Constitution of India (Pg. 10977) citing
precedents follows- The expression 'internal disturbance' has not been substituted in Article
355 as done in Article 352(1). Hence, in this insurrection need not be so serious as to assume
the shape of armed rebellion. But it should be more serious in magnitude. It must be so grave
as to be out of power and capacity of state police to quell the differences and establish peace
again, e.g. A massive and organized riot or in a nature of a domestic chaos.22

27. The question thus is, a group of people, sporadic, with uncommon intention can they be
deemed to be an organized group? Rather, the counsel submits that, remorse and grief
combined with Police action executing peaceful arrests, if that, or to function as per its
mandate could have helped the state to dodge this vegetative state of polity in the State.

22. Constituent Assembly Debates, Vol. IX, 141.(Krishna Ayyar)

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28. Following the written word as applicable in execution in the present scenario, they do grant
unhindered authority to the Union government in establishing its supremacy through the
above-mentioned statutes which is against the very spirit of Rule of law and
constitutionalism. The provisions lays emphasis on the intention of the Union executive to be
bona fide, however, the application is negative. The spirit of protection from supposed
external hazard and internal disturbance cannot take precedence over contours established by
the Constitution itself. In S.R. Bommai vs. Union of India23, the following was stated by the
court- "When called upon, the Union of India has to produce the material on the basis of
which action was taken. It cannot refuse to do so, if it seeks to defend the action. The court
will not go into the correctness of the material or its adequacy. Its enquiry is limited to see
whether the material was relevant to the action.

29. Correlating with the facts of the present case, it is humbly submitted that neither was there
such a situation nor sufficient material to prove and justify such an action on the part of the
Union. Virtually taking over law and order of a State which is perfectly in the condition to
regulate its area, is against the constitutional mandate of federalism. The independent
existence of a state confers certain powers upon it to maintain peace and order and legislate
with respect to police action sans qualifications introduced by amendments. Even the
imposition of Presidents rule was not in accordance with the constitutional mandate as would
be later proved. Article 355 should not be regarded the sole basis to execute action. The
situation was not made out to be such which the state government of Uttaravale could not
have handled on its own without any undue interference from the Union.

23. S.R. Bommai vs. Union of India [AIR (1994) SC 1918]

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 [3] THE PROCLAMATION OF PRESIDENT RULE IN STATE OF UTTARAVALE
WAS UNCONSTITUTIONAL.

30. In the present case, the Government of Uttaravale was dismissed in September, 2018 by a
Presidential Proclamation and President’s Rule was imposed on the state. Under Article
356(1) of the Constitution, President’s Rule can be imposed in a Province through a
proclamation, if the President is satisfied that a situation has arisen in which the Provincial
Government cannot work in accordance with the provisions of the Constitutionn.24 It is
submitted that the dismissal of the Government of Uttaravale was unconstitutional as: firstly,
it was not in accordance to the constitutional provision of Art.356 [3.1]; secondly, it was not
in conformity with the constitutional democratic and federal structure [3.2].

[3.1] THE GOVERNMENT OF UTTARAVALE WAS NOT DISMISSED IN

ACCORDANCE TO THE PROVISION OF ARTICLE 356.

31. The counsel submits that, the main ingredient which needs to be satisfied for the application
of Art 356 is the satisfaction of the President such that the government of state cannot be
carried out in accordance with the constitution.25 Learned judges have further held that the
word "cannot" emphatically connotes a situation of impasse. The word "cannot” would mean
“not to be able” or “not to have the power or capacity”. The word "cannot" is defined to
include a legal inability as well as a physical impossibility. Hence, situations which can be
remedied, or do not create an impasse" or do not disable or interfere with the Governance of
the State according to the Constitution would not merit the issuance of a Proclamation under
Art. 356.26

32. In the present instance, it is submitted that the situation in the State of Uttaravale was not such
which attracted the provision under Article 356. The government of Uttaravale did reflect a
situation of slight unrest due to the presence of some anti-social elements but the state
government had assured to expediently resolve the matter and punish the guilty. Now as also
stated in S.R Bommai v. Union of India, the exercise of power under Art. 356 is an
extraordinary one and needs to be used sparingly. Single or individual acts of violation of the
Constitution, good/bad or indifferent administration does not necessarily constitute failure of
the Constitutional machinery or characterises that a situation has arisen in which the
government of the State cannot be carried out in accordance with the Constitution.27 Hence
deducing from this, the state of Uttaravale was not one wherein, it would be beyond the
bounds of possibility to carry on the affairs of the province.

33. In a similar case, in 1998, on the basis of the Governor’s report indicating rampant
deterioration of law and order in the State, the Union government had recommended to the
President invocation of Article 356 of the Constitution in Bihar. Having considered the report
of Governor and recommendation of the government, some grounds were mentioned in the
minutes of the President making it clear that “the condition precedent for the invocation of
Article 356 has not been adequately made out”.

24. Article 356 of the Indian Constitution,1950

25. Durga Das Basu, Commentary on the Constitution of India, 10973 (8th ed.2010)
26. Durga Das Basu, Commentary on the Constitution of India, 10973 (8th ed.2010)
27. S.R. Bommai vs. Union of India [AIR (1994) SC 1918] Para 99

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  The condition precedent for the invocation of Article 356, viz, that there has been
failure of the constitutional machinery in the State, has not been adequately made out
by the Governor. (He relied on Bommai case in which it strongly held that the
precedent for the imposition of President’s Rule is a comprehensive breakdown of
the Constitution, a situation of constitution impasse, in the State concerned.)
 It is imprudent to take action under Article 356 in Bihar when preliminary steps under
Article 256 such as warning, directives and eliciting explanation from the State have
not been taken by the Union. It specifically pointed out that the absence of such
warning can render the issue of proclamation under Article 356 in respect of Bihar
fundamentally vulnerable in the Courts of Law.

34. Consequently, we can say that, neither did the State of Uttaravale have a situation of
constitution impasse nor did it defy any direction given by the union, as has been allegedly
put across by the union in its contention. To now further elaborate how the Union has not
acted in accordance with the Constitutional Provision of Art.365;

(3.1.1) Dismissal of the government was based on the ground extraneous to the purpose
of Article 356.
35. The marginal note to Art.356 uses the words ‘failure of constitutionally machinery in States’
cl.(1) of the Article uses the words, cannot be carried on in accordance with the provisions of
this constitution. The latter are words of the widest import, and if applied literally, they might
mean the failure on the part of the state government to comply with each and every provision
of the constitution. Machinery of government does not ordinarily fail if this or that provision
of Constitution is violated, in the course of State’s multifarious activities. The DPSP which
are “provisions of the constitution” furnish a clearest instance of this.28

36. The failure to maintain public order should not be taken as a state’s failure to carry on the
Government in accordance with the provisions of the constitution. As by applying the same
logic then, within the purview of 355-356, failure to maintain good local government (Entry
5 list II) or public health (Entry 6 list II) may also become legitimate grounds for intervention
of the union under Art 356. Such a wide interpretation would then make the federal system
under the Indian constitution a mere license at the will of the union government. It, therefore,
follows that a failure on the part of a State Government to maintain "public order” should not
ordinarily be a good ground for suspension of the State. It must be an aggravated form of
public disorder in order to justify application of Art. 356.29
37. In State of Rajasthan v. Union of India, there a fair consensus upon the opinion that a
Proclamation under Art. 356 (1), though based on subjective satisfaction of the Executive,
may be challenged on the grounds- if the Proclamation has been made upon a consideration
which is wholly extraneous or irrelevant to the purpose for which the power under Art. 356-
had been conferred by the Constitution. In another decision it was held that power used
under Art 356 (1) on the grounds of corruption or maladministration by a State Government
enjoying majority or for cleansing of politics or for securing good governance cannot be
invoked, and such grounds are not available
28 Durga Das Basu, Commentary on the Constitution of India, 10973 (8 th ed.2010)
29. Durga Das Basu, Commentary on the Constitution of India, 10973 (8 th ed.2010)

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 under the Article and are extraneous to the purpose of Art.356. Remedy for corruption or
similar ills and evil lies elsewhere and not under Art. 356(1).30

(3.1.2) The government was dismissed without following the requisite procedure.
38. It has been noted in Constituent Assembly debates and by the Sarkaria Commission that the
drastic power of Art.356 should be used only after other remedies have failed. The President
should issue a warning regarding the failure of the constitutional machinery to the concerned
State. Only after the failure of the State to respond to the same, should Art.356 be imposed.31
The supreme court has also reaffirmed the necessity of issuing such a warning.32
39. In the case of H.S. Jain v. Union of India, 33 while assessing the question of a proclamation
under Art.356 in respect of the State of Uttar Pradesh, it was concluded that before the
proclamation under Art. 356 was issued, few or no alternative actions were explored, despite
there being a legal and constitutional mandate to do so. The proclamation under Art. 356 was
therefore set aside and importantly, it was held that the Art. 355 duty to ensure that the
Government of the State be carried out in accordance with the provisions of the Constitution
was not properly carried out.34 Thus, it may be safely inferred that the second part of Art.
355, stipulating that the Union ensures that the Government of the States is carried on in
accordance with the Constitution, is no longer merely a justification for action under Art. 356
but gives rise to independent powers and obligations as well.

[3.2] THE ACTION OF THE UNION AMOUNTS TO THE VIOLATION OF THE

PRINCIPLE OF FEDERALSIM ENSHRINED IN THE CONSTITUTION.
40. In Kesavananda Bharti v. Union of India, 35 it was held that federalism forms a part of the
basic structure of the Constitution. Furthermore, in S.R. Bommai v. Union of India, 36 the
court observed that federalism in the Indian constitution is a concept that unites separate
states into a Union without sacrificing their individual political integrity. Article 356(1) of
the Constitution was most keenly discussed and debated in the Constituent Assembly. The
Founding Fathers apprehended that, if and when it would be misused, it would violate not
merely the federal character of the polity envisaged by them but also make a mockery of
democratic principles.37
41. Chief Justice P. N. Bhagwati also conceded that the inclusion of the word ‘otherwise’ in
Article 356 gave the President very drastic powers which, if misused or abused can destroy
the constitutional equilibrium between the Union and the States. He said, “Indeed, the usual
practice is that the President acts under Article 356(1) of the Constitution only on Governor’s
report. But, the use of the word ‘otherwise’ (in Art. 356) shows that President’s satisfaction
could be based on other material as well. This feature of our constitution indicates most
strikingly the extent to which inroads have been made by it on the federal principle of
Government.38 This is precisely what took place in the current situation, the action was not
taken against the Governor’s report but otherwise.

31 Durga Das Basu, Commentary on the Constitution of India, 10973 (8th ed.2010)
32 S.R. Bommai vs. Union of India [AIR (1994) SC 1918] Para 99
33 H.S. Jain v. Union of India 1993 (4) SCC 120
34 Art 355 of Indian constitution,1950
35 Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
36 S.R. Bommai vs. Union of India [AIR (1994) SC 1918] Para 99
37 Constituent Assembly Debates, Vol. IX, 141.
38 State of Rajasthan v Union of India AIR 1977 SC 1361

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42. The counsel humbly submits that the High Court has erred in upholding the proclamation
under art.356 and the same should be struck down as it is “undermining the foundation of
federalism and breeding cynicism in the hearts of citizens who participate in a democratic
system”.39 The Union Government’s action has no valid basis and is in actuality riddled with
blatant falsehood.
(3.2.1) Arbitrary exercise of the power by the Union.
43. Under the mandate of Art. 355 40, the Union may be seen as having the role of a gentle
protector of the States. This means that in a situation of concern in a given State, the Union
ought to initially show reluctance to interfere, but if such an attitude leads to worsening
consequences, the Union cannot ignore its obligation towards the States under Art. 355. This,
however, does not mean that it hastily invokes emergency measures. Having regard to the
federal scheme of the Constitution and the need to minimize the exercise of sweeping
emergency powers, the Union may consider the other available powers at its disposal that
would help in the effective carrying out of its obligation towards the States. In the present
situation, the disruptive elements in that state could’ve been undeniably attended to by the
Union through its other mediums of power and the invocation of Article 356, thus seems
arbitrary and haste.
44. As is also recommended by the Sarkaria Commission, in a situation of "external aggression"
or "internal disturbance” which paralyses the State administration, all alternative choices of
the Union for discharging its paramount responsibility under Art. 355 should be exhausted to
contain the situation before adapting one under Art.356
45. Here, it has to be seen in the context of hope of “rarest of the rare” use or as stated by Dr.
Ambedkar in the Constituent Assembly Debates, “to remain a dead letter”
that Article 356 has been used more than 120 times, calculating an average more than two
times in a year. According to the Sarkaria Commission's Report41, which analysed 75 cases
of President's Rule from June 1951 to May 1987 and found in 52 cases out of
75, Article 356 has been used not meant for. Thus the use of the article for political purposes
is to uproot the federal character and democratic principle which is guaranteed by the
judiciary as basic structure of the Constitution.42
46. Siwach in his article43 aptly described how Article 356 was used frequently by the Centre for
its partisan interests and how most of them were dismissed on unconvincing grounds. For
example, Gian Singh Rarewale in Pepsu (1953), Namboodiripad in Kerala (1959), Rao
Birendra Singh in Haryana (1967), Charan Singh in Uttar Pradesh (1970), Karunanidhi in
Tamil Nadu (1976), Devaraj Urs in Karnataka and P. K. Das in Tripura (1977.Thus, there
have numerous instances when the Union has arbitrarily made use of Article 356 to meet its
partisan interests.
47. In the present scenario, the article has yet again been used by the Union to meet its
unscrupulous ends. The Union by using its advantageous position in the Centre has chosen to
spread its influence via the route of Article 356.44 as such a move would benefit its partisan
interest as clearly the party in the State was shown by leading surveys to be in a pole position
for the next General Elections and was hence a threat to the ruling government.

39. Uttarkhand High Court Decision , Indian express

40. Article 355 of The Indian Constitution
41. Sarkaria Commission, Report on Centre-State Relationship (1983-1988
42. Kesavananda Bharati v. State of Kerala, (1973) 4 SCC 225.
43.Siwach, J. R., State Autonomy and the President’s Rule, Indian Journal ofPolitical Science.Vol. 46, No. 2,
April-June, 1985.]

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 [4] SIT SHOULD BE CONSTITUTED FOR THE INVESTIGATION INTO THE
ARREST OF ACTIVISTS.

48. It is humbly submitted before this hon’ble court that the accused has been deprived of his
right to life and personal liberty due the false sedition charges made against him. This is a
clear case of unlawful arrest to suppress the voices of opposition due to difference in political
opinions. There is an urgent need of impartial and fair investigation into the matter and
therefore, a Special Investigation Team must be constituted.

[4.1] FREEDOM OF SPEECH & EXPRESSION UNDER ARTICLE 19 AND THE

LAW OF SEDITION

49. The Constitution of Westrostan guarantees Freedom of Speech and Expression under
Article 19[1(a)] to all its citizens alike and the accused being the citizens of the country are
protected under this right as criticizing the government and its policies without creating
public disorder or incitement of violence against the government falls within the ambit of this
provision.Therefore sedition charges framed against the accused are erroneous.

[4.1.1] FUNDAMENTAL RIGHT TO FREEDOM OF SPEECH AND EXPRESSION

50. Article 19[1(a)] of the constitution guarantees freedom of speech and expression to all the
citizens of the country. The fundamental right to freedom of speech and expression is
regarded as one of the most basic elements of a healthy democracy for it allows its citizens to
participate fully and effectively in the social and political process of the country. In Maneka
Gandhi vs. Union of India44, BHAGWATI J., has emphasized on the significance of the
freedom of speech & expression and stated that, “Democracy is based essentially on free
debate and open discussion, for that is the only corrective of government action in a
democratic set up. If democracy means government of the people, by the people and for the
people, it is obvious that every citizen must be entitled to participate in the democratic
process and in order to enable him to intelligently exercise his rights of making a choice, free
& general discussion of public matters is absolutely essential.” Freedom of speech and
expression of opinion is of paramount importance under a democratic constitution which
envisages changes in the composition of legislatures and governments and must be
preserved45.

[4.1.2] LAW OF SEDITION

51. Section 124A of the Indian penal code 1860 lays down that : ‘whoever brings or attempts to
bring hatred or contempt to exile disaffection towards the government shall be punished with
imprisonment for life or three years.’

44. 1978 AIR 597

45. Sakal Papers (P) Ltd. And ors. Vs. Union of India [1962] 3 S.C.R 842

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 Explanation 2: of this section clearly states that comments expressing disapprobation of the
exciting or attempting to excite hatred, contempt or disaffection do not constitute an offence
under this section. Dissent or criticism without fueling hatred or violence cannot be
considered as sedition.
Explanation 3: comments expressing disapprobation of the administrative or other action of
the government without exciting or attempting to excite hatred, contempt or disaffection do
not constitute an offence under this section. Sharp criticism of government policy and
administrative action does not come under sedition.
52. Therefore, it can clearly be inferred from this section that merely criticising the government
and holding peaceful gatherings to express disaffection and dissatisfaction of governmental
policies does not amount to sedition. Any charges framed against any person under this
section in such a case will amount to outright violation of their fundamental rights under
Article 19 and 21. The charge of sedition under Section 124A of the Indian Penal Code
cannot not be invoked to penalise criticism of the persons engaged in carrying on
administration or strong words used to express disapprobation of government measures to
improve or alter them by lawful means46. Ordinary or local breaches of public order were no
ground for restricting the freedom of speech and expression lay at the foundation of all
democratic organizations47.
53. Similarly, in Kedarnath Singh vs. State of Bihar48, the court held that strong criticism of
the measures of the government written or spoken are outside the scope of Section 124A of
the IPC. A citizen has a right to say or write whatever he likes about the government or its
measures by way of criticism, so long as he does not incite people to violence.
In P Alavi vs. State of Kerala49 the court upheld the judgement given in Kedarnath vs State
of Bihar observing that ‘Criticising the present judicial set up or functioning of the parliament
or legislative assemblies cannot be considered as bringing hatred or contempt to the
government. Nor are the slogans alleged to have been shouted by the persons capable of
inciting any class or community of persons to commit any offence.’ Seldom a day has passed,
when such or similar slogans have not been ‘shouted in rancour’ in one or other part of the
state. A citizen has a right to say or write whatever he likes about the government by way of
criticism or comments so long he did not incite people to resort to violence. The article
merely seeks to voice the opinion and the view of the author of the need to strike a balance
between the functioning of two important pillars of a State. It is surely to not call arms50.
Mahatma Gandhi during his trial, when he was tried under charges of sedition stated
“Section 124A under which I am happily charged, is perhaps the prince among the
political sections of the Indian Penal Code designed to suppress the liberty of the citizen.
Affection cannot be manufactured or regulated by the law. If one has no affection for a
person, one should be free to give the fullest expression of his disaffection so long as he
does not contemplate , promote or incite to violence.

46. Sanskar Marathe vs. State of Maharastra and others 2015 SCC OnlineBom 587
47. Romesh Thappar vs. State of Madras [1950 S.C.R 594 ]
48. 1962 AIR 955
49. 1982 KLT 205
50. Arun Jaitley v State of Uttar Pradesh AIR 2015 All. 382

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 [4.2] RIGHT TO LIFE AND PERSONAL LIBERTY

54. It is very well established that Fundamental rights occupy a place of pride in the constitution.
Personal liberty is a sacred and cherished right under the constitution.
Article 21 provides “no person shall be deprived of the Right to life and personal liberty
except in accordance with procedure established by law”. The term “life”under article 21
does not mean a mere animal existence, rather it means to live life with a human dignity,
right to livelihood, right to privacy, right to compensation etc. It ensures all freedom and
advantages that make life sustainable to humane existence51. The expression “life or personal
liberty” has been held to include the right to live with human dignity and thus it would also
include within itself a guarantee against torture and assault by the state or its functionaries8.
The submission of the counsel is that inspite of the constitutional and statutory provisions
aimed at safeguarding the personal liberty and life of a citizen , the citizen of Westrostan are
deprived of their rights in cases like such where false sedition charges are made and unlawful
arrests are conducted by the police on those charges. The rights inherent in Article 21 and 22
of the constitution required to be recognized and scrupulously protected. We cannot wash
away the problem. Any form of torture or cruel, inhuman or degrading treatment would fall
within the inhibition of article of the constitution whether it occurs during investigating,
interrogation or otherwise51.
55. In State of West Bengal v Committee for Protection of Democratic Rights53, while
deciding the arguments, the Court expanded the scope of Article 21 and held that it protects
not only the “rights of an accused but also the rights of the victim. The State has a duty to
enforce the human rights of a citizen providing for fair and impartial investigation against any
person accused of commission of a cognizable offence”.

[4.2.1] UNLAWFUL ARREST AND DETENTION

56. It is further submitted before the Hon’ble court that the arrest of the accused was unlawful
and baseless. The persons who are arrested are an active defender of human rights. This
targeted persecution is meant to strike fear amongst human right activities to deter them from
speaking against or critiquing governmental policies and police actions. Persecution of this
nature would, it has been urged, shake the foundation of the rule of law and render the
freedom guaranteed by the constitution illusory. In Joginder Kumar vs. State of UP54 the
court held that “no arrest can be made because it is lawful for the officer to do so. The
existence of power is one thing and the justification of the exercise of it is quite another. No
arrest should be made without a reasonable satisfaction reached after some investigation as to
the genuineness and and bonafides of the complaint and a reasonable belief, both as to the
person’s complicity and even so as to the need to effect arrest.”

51.Kharak singh vs. State of Uttar Pradesh 8 [1964]SCC 332

52.(1997) 6 SCC 642
53. (2010) 3 SCC 571
54. (1994) 4 SCC 20

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57. There are different bodies that have laid down various provisions and reports regarding
arrests and procedure imbibed with it.
 Article 3 of Universal Declaration of human rights proclaims that “ everyone has the
right to life, liberty and security of person.” Article 5 says “no one shall be subjected
to torture or to cruel inhuman or degrading treatment or punishment.” Article 9
asserts that “ no one shall be subjected to arbitrary, arrest detention or exile”.
● Article 10 of the international convenant civil and political rights stipulates that “ all
persons deprived of their liberty shall be treated with humanity and with respect for
the inherent dignity of the human person.”
● The National Police Commission in its third report referring to the quality of arrests
by the police, mentioned power of arrest as one of the chief sources of corruption in
the police. The report suggested that by and large, nearly 60% of the arrests were
either unnecessary or unjustified. No arrest can be made because it is lawful for the
police to do so except in the cases of heinous offences, arrest must be avoided. The
existence of power to arrest is one thing, the justification for the exercise of it is quite
another. The police officer must be able to justify the arrest apart from the power to
do so. Arrest and detention in police lock-up of a person can cause an incalculable
harm to the reputation and self esteem of the person. No arrest can be made in a
routine manner on a mere allegation of commission of an offence made against a
person. Denying a person of his liberty is a serious matter and such power to arrest
must be used cautiously.

[4.3] CONSTITUTION OF SIT FOR FAIR AND IMPARTIAL INVESTIGATION

58. Liberty of individual and dignity in life of a person are the facets of core constitutional
values and this issue is not of ordinary criminal jurisprudence, but of actualization of
constitutional values and to expose the unjustified incarceration of innocents who happen to
be human rights activists. Thus, the two foundational values of existence, therefore, of the
accused persons must be preserved. The persons arrested, however, are well-known for
societal activism and have been unjustly put behind bars on the basis of unsubstantiated
allegations and without any evidence against them. If before taking up further investigation
an opinion has already been formed regarding the guilt of the accused and that too at a stage
when the commission of the offence itself is yet to be proved, it is obvious that the
investigation cannot and will not be fair and its outcome appears to be forgone conclusion55.
Isn’t this a paralytic situation which disregards ‘Principles of Natural justice’ and ‘Rule
against bias’?
59. It is known that the arrested persons are “all outstanding, well-known and well respected
human rights activists” and therefore, their arrest requires to be enquired into scrupulously. In
Ram Jethmalani vs. Union of India56, this court observed that in several instances in the

55. K. Chandrasekhar vs. State of Kerela (1996)SCC Online Ker 273: (1996) 2 KLJ 736
56. (2011) 8 SCC 1

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 past, when the issues were of a complex nature yet requiring the intervention of the court, SIT
were ordered to be constituted to enable the court, the union government and other organs of
the state to fulfil their constitutional organs. In an appropriate case, or when exceptional
circumstances have been made out, the jurisdiction under Article 32 can be exercised to
constitute a SIT or transfer the investigate to a central agency and monitor it or even to order
a de novo investigation into criminal cases57 In Babulal Jamnadas Patel vs. State of
Gujarat58, the supreme court held that “the investigation of offences is normally the function
of investigating agency but where extraordinary facts and situations are involved, it is the
duty of the high courts and of this court to intervene to ensure that the rights of the citizens
are duly protected, as they are the sentinels of justice and have been vested with extraordinary
powers of judicial review and supervision.”
60. Justice D.Y. Chandrachud in Romila Thapar and ors. vs. Union of India and ors.59
elaborated that the jurisdiction under article 32 is wide enough to reach out to injustice in
any form and originating in any source. Securing human liberty and dignity must occupy an
important scope in the judicial docket. Liberty and freedom are defining values of our
Constitution. The institutional role of this Court as a constitutional adjudicator should brook
no technicalities which obstruct the cause of justice. When a group of citizens has moved
this Court with an impassioned plea about the violation of human rights, the Court must look
beyond locus of perception of an ordinary eye. Decisional flexibility in the exercise of this
jurisdiction meets exigencies which arise in unforeseen situations, warranting the intervention
of this Court under Article 142. While the Court does not determine the course of the
investigation, it acts as a watchdog to ensure that a fair and impartial investigation takes
place. A fair and independent investigation is crucial to the preservation of the rule of law
and, in the ultimate analysis to liberty itself.
61. It is humbly submitted that, the basic entitlement of every citizen who is faced with
allegations of criminal wrong, in the investigative process be reasonably fair as established by
Article 21. This is an integral component of the guarantee against arbitrariness under the
article 14 and of the right to life and personal liberty under article 21. The law is not the
respecter of social, economic or political status and every person who seeks access to justice
has to be treated evenly. Article 14 provides each and every person with the right to be
treated equally in every aspect. In Vineet Narain vs. Union of India60, while ordering a
monitored investigation to ensure that government agencies discharged their duties and
functions bearing in mind the tenets of equality and rule of law, the court emphasized the
need to retain public confidence in the process of investigation.
62. Furthermore, the purpose of these proceedings in not to thwart an investigation but to ensure
that the investigation is fair and impartial. It is urged that in a long line of precedent, this
court has ordered the constitution of SIT or a court monitored investigation under Article 32
of the Constitution. The targeting of human rights activists for their opposition to the
governing regime implicates a serious violation of democratic values and necessitates the
setting up of a SIT.

57. Bharati Tamang vs. Union of India (2013) 15 SCC 578

58. (2009) 9 SCC 610
59. Writ Petition (criminal) no. 2018
60. (1996) 2 SCC 19

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 PRAYER

In the light of the facts stated, issues raised, arguments advanced and authorities cited, the
Counsel for the Appellant humbly pray before this Hon’ble Supreme Court that it may be
pleased to adjudge and declare:

1. That dynastic and Communal parties violate the democratic and secular principle of the
Constitution and some guidelines should be laid down to curb such practices.

2. That entry 2A in the Union list and amended entries 1 and 2 in the State list is ultra vires
of the Constitution as it affects the Basic Structure of the Constitution.

3. That the proclamation of President Rule in the state of Uttaravale is constitutionally

invalid and the High Court has erred in upholding the decree.

4. That the arrest of the human rights activists is unlawful and in violation of the
Fundamental right and a Special Investigation team must be constituted to look into the
matter.

Or pass any other order or make directions as the Hon’ble Court may deem fit to meet the
interest of justice, equity and good conscience in the instant case.
And for this act of kindness, the Appellant shall duty bound, forever pray.

Respectfully Submitted On Behalf of the Appellant.

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