-MEMORIAL FOR THE PETITIONER-

8TH KIIT INTRA MOOT COURT COMPETITION, 2016

Team Code No.: 855

BEFORE THE HONOURABLE CENTRAL HIGH COURT

OF BORISSA

ABAPTA
VS
STATE OF BORISSA

UNDER ARTICLE 226 OF THE CONSTITUTION OF BORISSA

MEMORIAL FOR PETITIONER

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TABLE OF CONTENT
ABBREVIATIONS ................................................................................................................. 2

TABLE OF CASES ................................................................................................................ 3

BOOKS AND DIGESTS REFERRED ......................................................................................... 4

ONLINE RESOURCES ........................................................................................................... 4

STATEMENT OF JURISDICTION................................................................................................. 5

STATEMENT OF FACTS............................................................................................................ 6

STATEMENT OF ISSUES ........................................................................................................... 7

SUMMARY OF ARGUMENTS .................................................................................................... 8

ARGUMENTS ADVANCED ..................................................................................................... 10

1. Whether The Said Writ Petition Is Maintainable? ........................................................ 10

2. Whether the permission taken back by the government of Borissa under section 144 of
CrPC 1973 is Justified or not?..................................................................................................11

3. Whether any Fundamental Right is violated or not?

3.1Whether the fundamental Right which is guaranteed under article 19 has infringed
or not?...........................................................................................................................13

3.2 Whether the Fundamental Right which is guaranteed under article 21 has
infringed or not?....................................................................................................15

PRAYER ............................................................................................................................ 18

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INDEX OF AUTHORITIES

LIST OF ABBREVIATIONS

S. NO. ABBREVIATION FULL FORM

1. AIR All India reporter

2. SC Supreme Court

3. SCC Supreme Court Cases

4. Sec. Section

5. Vs Versus

6. SCR Supreme Court Reports

7. Govt. Government

8. Ibid Ibidem

9. Vol Volume

10. CrPC Code of Criminal Procedure

TABLE OF CASES

S.NO CASE NAME CITATION PAGE NO.

1. Durayoo vs State of Uttar Pradesh AIR 1961 SC 1457 10
2. State of Orissa vs Ram Chandra Dev. AIR 1964 SC 685 10
3. S.M.D Kiran Pasha vs Govt of Andhra (1990)1 SCC 328 11
Pradesh
4. Union of India vs W.N.Chadha AIR 1993 SC 1082 11
5. Bandhua Mukti Morcha vs Union of India AIR 1984 SC 802 11
6. Mani Subrat Jain vs State of Haryana. AIR 1977 SC 276 11
7. Re Ramlilla Maidan AIR 2012 SC (Supp) 266 14
8. State of West Bengal v. Subodh Gopal 1954 SCR 587 14
Bose
9. Maneka Gandhi v. UOI 1978 AIR SC 597 15

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BOOKS AND DIGESTS REFERRED

 Durga Das Basu, Commentary on the Constitution of India, 8th Edition 2011
 V.N.Shukla, Constitution of India, 12th Edition 2013
 M.P.Jain, Indian Constitutional Law, 5th Edition 2003
 Dr. J.N. Pandey , The Constitutional Law of India, 52nd Edition 2015
 S.N.Mishra , The Criminal Procedure Code
 Dr.R.K.Bangia Law Of Torts, 23rd Edition 2013
 Samaraditya Pal Law relating to Public Service, 3rd Edition 2011

ONLINE RESOURCES

 www.westlawindia.com (westlaw)

 www.manupatrafast.com (manupatra)

 www.scconline.com (scconline)

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STATEMENT OF JURISDICTION

The petitioner humble submits to the jurisdiction of this honourable court under Article 226
of the Constitution. The petitioner approached this honourable court for enforcement of right
guaranteed under Part III of the Constitution. The particular shall accept any judgement of the
Court as final and binding upon them and shall execute in its entirety and good faith.

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STATEMENT OF FACTS

1. ABAPTA which is registered under the society registration act sought permission from the
police commissioner of Borissa for organising a relay hunger strike near state assembly
demanding regularization of 1500 such ad-hoc teachers. Police granted the conditional non
objection certificate.

2. On the end of 5th October 2015 the ABAPTA started sitting on agitation of relay hunger
strike after 4 days(9th of October 15) it was seen that opposition leaders of political party
come before the dharna place and assemble the protesting teacher against the ruling
government .On the very next day (10th October)government withdrew the permission and
imposed prohibitory order under section 144 of CrPc 1973.The police commissioner come to
the protesting teacher and leaders to withdrew the hunger strike but talks fails between them.

3. On the same day i.e. 10th of October there was a police crackdown at night and the agitating
teachers were asked to leave the place and midnight and for the same police evicted the
sleeping person by use of canning, tear gas etc. Which resulted in injuries to the number of
agitating teacher.

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STATEMENT OF ISSUES

1. Whether the said writ petition is maintainable or not?

2. Whether the permission taken back by the government of Borissa under section 144 of CrPC
1973 is Justified or not?
3. Whether any Fundamental Right is violated or not?
3.1 Whether the fundamental Right which is guaranteed under article 19 has been
infringed or not?
3.2 Whether the Fundamental Right which is guaranteed under article 21 has been
infringed or not?

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SUMMARY OF ARGUMENTS

1. Whether the said writ petition is maintainable or not?

The said writ petition should be maintainable because the fundamental rights of the
constitutional remedies guaranteed under part III where by any citizen can approach any
competent High Court for enforcement of his fundamental rights. A writ of Mandamus
should be issued by the court for relief. Since the High Court of Borissa is a competent
authority with the definition of Article 226. We are approaching to this court.

2. Whether the permission which was withdrawn by the government of Borissa under
section 144 of CrPC 1973 is justified or not?

For invoking sec.144, Cr.P.C. three conditions must be satisfied-

a. If there is immediate provocation and if there is a need for speedy remedy.

b. Police also have to state material facts in the order passed
c. Only prohibit certain acts.

Immediate provocation or any exigency situation could not be established by the police. The
police started resorting to canning and tear gas etc. Which resulted in injuries to the number
of agitating teacher. Sec 144 can only be used in cases where there is a need for immediate
prevention or there is a need for speedy remedy. Section 144 cannot be used for dangers
which are foreseeable, but only in cases of imminent dangers. It is settled law that the order
issued under section 144 must prescribe the material facts. A restriction on a constitutional
right has to be used very sparingly and cautiously.

3. Whether any Fundamental Right is violated or not?

(A) Whether the fundamental Right which is guaranteed under article 19 has infringed or not?

(B) Whether the Fundamental Right which is guaranteed under article 21 has been infringed
or not?

(A) Article 19(1) (a) and 19(1) (b) of the Constitution of India guarantee to all citizens the
right to freedom of speech and expression and the right to assemble peacefully without arms.
These provisions protect the basic rights of the individuals and uphold the democratic spirit

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of the nation. However, these rights are not absolute and the state is empowered by Art.
19(2), 19(3) and 19(4) to impose reasonable restrictions in the interest of security of the State,
public order etc. The underlying principle is that public order and tranquillity are supreme
and take precedence over individual rights.

(B) An individual is entitled to sleep as comfortably and as freely as he breathes. Sleep is

essential for a human being to maintain the delicate balance of health necessary for its very
existence and survival. Sleep is, therefore, a fundamental and basic requirement without
which the existence of life itself would be in peril. To disturb sleep, therefore, would amount
to torture which is now accepted as a violation of human right. Article 21 which guarantees
personal liberty and life to all. Sleep forms an essential part of living a peaceful life, hence it
is a fundamental right.

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ARGUMENTS ADVANCED

1. Whether the said writ petition is maintainable or not?

1.1. The said writ petition should be maintainable because the fundamental rights of the
constitutional remedies guaranteed under part III1 where by any citizen can approach any
competent High Court for enforcement of his fundamental rights. A writ of Mandamus
should be issued by the court for relief. Since the High Court of Borissa is a competent
authority with the definition of Article 2262. We are approaching to this court.

1.2. Article 2263 of the constitution guarantees to a citizen, a fundamental right to

constitutional remedies under part III4 whereby any person can approach the Central High
Court of Borissa to enforce rights guaranteed to him under Article 2265. The honourable Commented [R1]:

court then may in accordance pass writs to ensure enforcement of the rights given in part
III6. Article 2267 thus provides for an expeditions and inexpensive remedy for protection
of fundamental rights from legislation and executive interference.

1.3. In discharging the duties assigned to protect fundamental rights the Supreme Court in
the words of Patanjali Sastri J. has to play a role of a qui vie. It has been held in Durayoo
vs State of Uttar Pradesh8, the Supreme Court took it as its solemnly duty to protect the
fundamental rights zealously and vigilantly.

1.4. Article 2269 does not specify the person who can approach the court under it. But as
this article provides a public law remedy similar to Article 3210, similar provisions of locus
standi apply to it as to Article 3211. Ordinarily a person whose legal rights or other legally
protected interests are adversely affected should approach the court for relief State of Orissa
vs Ram Chandra Dev12. The petitioner need not wait till the infraction of his right; he can also
approach the court against imminent threat of such infraction S.M.D Kiran Pasha vs Govt of

1
The Constitution of Borissa, Pari Materia to Constitution of India
2
Ibid.
3
Ibid.
4
Ibid.
5
Ibid.
6
Ibid.
7
Ibid.
8
AIR 1961 SC 1457
9
Ibid.
10
Ibid.
11
Ibid.
12
AIR 1964 SC 685

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Andhra Pradesh13. An accused has no locus standi at the stage of investigation to question the
manner in which the evidence is to be collected Union of India vs W.N.Chadha14.

1.5. The above principle viz the existence of the right of interest being the foundation of the
jurisdiction, is subject to certain exceptions. Moreover as we have discussed under Article
3215 the concept of locus standi has undergone a sea change, particularly in respect of public
interest litigation. The same liberalised principles of locus standi are applicable to Article
22616as are to Article 3217 especially with respect to the enforcement of fundamental rights.
Bandhua Mukti Morcha vs Union of India18

1.6. Mandamus is a judicial remedy which is in the form of a superior court to any
government, court, corporation or public authority to do or to forbear from doing some
specific act which that body is obliged under law to do or retrain form doing, as the case may
be and which is in the nature of a public duty and in a certain cases of statutory duty
A.T.Markose19 It cannot be issued to do something against the statutory provision. The writ
has been so defined in Halsbury20.

1.7. No one can ask for a Mandamus without a legal right. There must be a judicially
enforceable as well as legally protected right before one suffering a legal grievances can ask
for a mandamus. A person can be said to aggrieve only when he is denied a legal right by
someone who has a legal duty to do something and abstains from doing it Mani Subrat Jain
vs State of Haryana21. The legal right of the teachers has also been violated like the silent
protest.

2. Whether the permission which was withdrawn by the government of Borissa

under section 144 of CrPC 1973 is Justified or not?

2.1. The permission taken back by the Govt of Borrisa under section 144 of Crpc. 1973 is
not justified because as given in the facts ,on the end of 5th October 2015 ABAPTA

13
(1990)1 SCC 328
14
AIR 1993 SC 1082
15
The Constitution of Borissa, Pari Materia to Constitution of India
16
Ibid.
17
Ibid.
18
AIR 1984 SC 802
19
Judicial Control of Administrative Action in India
20
HALSBURYS LAWS OF ENGLAND (4TH EDITION) (Vol I, para 89)
21
AIR 1977 SC 276

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started sitting on agitation of relay hunger strike and after 4 days(9th of October 15) it was
seen that opposition leaders of political party came before the dharna place and mobilised
the protesting teacher against the ruling government. There was a peaceful protest which
continued and even after the opposition leader of the political party came there was a
peaceful protest which was continued.

2.2. On the very next day (10th October) govt. withdrew the permission and imposed
prohibitory order under section 144 of CrPc 1973. The time when the orders were
passed, all the followers were peacefully sleeping. Section 144 is to be applied in cases
where there is imminent threat to security. A peacefully sleeping crowd cannot be a
threat. The police, if needed could order the followers to vacate the premises the next
morning, by giving specific reasons. A notice to evacuate given at midnight cannot be
said to be reasonable. There were a huge number of people and it is of common
understanding that displacement of such a crowd (approximately 1500 members) will
take a couple of hours, to say the least. At midnight finding alternate accommodation for
a huge crowd is highly impossible.

2.3. Secondly, Sec 144 can only be used in cases where there is a need for immediate
prevention or there is a need for speedy remedy. Section 144 cannot be used for dangers
which are foreseeable, but only in cases of imminent dangers. It is settled law that the
order issued under section 144 must prescribe the material facts. A restriction on a
constitutional right has to be used very sparingly and cautiously.

2.4. Use of this property doesn’t depend upon the permission from the Borissa Police,
they could neither grant permission, nor could they refuse it. There is no rule under
which I could be asked to take permission. It is part of the Indian tradition to hold
meetings at public places. However, this argument does not hold water. Although
Fundamental Rights are considered sacred, when Police are entrusted the duty of
preserving the public peace and tranquillity, they must also be given the powers to
regulate public gatherings. Imposing reasonable restrictions on any public gathering
especially when it is evident that a large number of people are expected is necessary to
regulate and take sufficient precautionary measures. Borissa Police, having granted such
permission, was fully competent to revoke it as well as to pass orders under Sec.144
CrPC

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2.5. Nonetheless, it is accepted that the police was required to give adequate notice to
people before resorting to any action and if the people did not cooperate, only then the
police could have taken any action. In any country, especially a democracy, the
balancing of interests must be ensured and no organ of the state should have unlimited or
unguided powers. This is applicable equally to the public as well to the police.

Therefore, for invoking sec.144, Cr.P.C. three conditions must be satisfied-

a. If there is immediate provocation and if there is a need for speedy remedy.

b. Police also have to state material facts in the order passed
c. Only prohibit certain acts.

Immediate provocation or any exigency situation could not be established by the police. The
police started resorting to canning and tear gas etc. Which resulted in injuries to the number
of agitating teacher.

3. Whether any Fundamental Right is violated or not?

(A) Whether the fundamental Right which is guaranteed under article 19 has
infringed or not?

(B) Whether the Fundamental Right which is guaranteed under article 21 has been
infringed or not?

(A) 3.1 Article 19(1)(a)22 and 19(1)(b)23 guarantee to all citizens the right to freedom of
speech and expression and the right to assemble peacefully without arms. These provisions
protect the basic rights of the individuals and uphold the democratic spirit of the nation.
However, these rights are not absolute and the state is empowered by Art. 19(2)24, 19(3)25 and
19(4)26 to impose reasonable restrictions in the interest of security of the State, public order

22
The Constitution of Borissa, Pari Materia to Constitution of India
23
Ibid.
24
Ibid.
25
Ibid.
26
Ibid.

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etc. The underlying principle is that public order and tranquillity are supreme and take
precedence over individual rights.

3.2 Sec.144 of the Code of Criminal Procedure, 1973 empowers certain officers to prohibit an
assembly subject to the conditions:

(1) There must be sufficient grounds for proceeding;

(2) Immediate prevention or speedy remedy is desirable; and

(3) An order, in writing, should be passed stating the material facts and be served the same
upon the concerned person.

3.3 According to Justice Swatanter Kumar in the case of Re Ramlilla Maidan27 began the
judgement by comparing the First Amendment of the United States Constitution which
provides for the freedom of speech of press in the American Bill of rights with Art.19(1)(a)28.
In the US, the language of the amendment provides for absolute freedom without any
restrictions what so ever. This is in contrast to the ‘balancing of interests’ principle followed
by the Indian Constitution. The ‘balancing of interests’ approach is basically derived from
Roscoe Pound’s theories of social engineering which says that a social interest may not be
balanced against individual interest, but only against another social interest.

3.4 Article 19(2)29 empowers the State to impose reasonable restrictions on exercise of the
right to freedom of speech and expression in the interest of the factors stated in the said
clause. Similarly, Article 19(3)30 enables the State to make any law imposing reasonable
restrictions on the exercise of the right conferred, again in the interest of the factors stated
therein. The State has a duty to protect itself against certain unlawful actions and, therefore,
may enact laws which would ensure such protection. As observed in the case of State of West
Bengal v. Subodh Gopal Bose31.

27
AIR 2012 SC (Supp) 266
28
The Constitution of Borissa, Pari Materia to Constitution of India

29
Ibid.
30
Ibid.
31
1954 SCR 587

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“The right that springs from Article 19(1)32 is not absolute and unchecked. There cannot be
any liberty absolute in nature and uncontrolled in operation so as to confer a right wholly free
from any restraint. Had there been no restraint, the rights and freedoms may become
synonymous with anarchy and disorder.”

3.5 This was referred to by the Hon’ble Judge to bring to light the scope and ambit of the
Fundamental Rights guaranteed under Part III33 and the power of the state to restrict these
rights. The case at hand involved a pertinent issue of the balancing of fundamental right to
speech and expression and assemble peacefully without arms with the duty of the state to
protect public safety.

3.6 The restrictions as provided for in the Constitution of India must be reasonable. This
principle as contemplated under our Constitution brings the question as the test of
reasonableness. The concept of `procedure established by law’ changed its character after the
judgment of Maneka Gandhi v. UOI34 , where the Court took the view:

3.7 “The principle of reasonableness, which legally as well as philosophically is an essential

element of equality or non-arbitrariness pervades Article 1435 like a brooding omnipresence
and the procedure contemplated by Article 2136 must answer the test of reasonableness in
order to be right and just and fair and not arbitrary fanciful or oppressive otherwise it would
be no procedure at all and the requirement of Article 2137 would not be satisfied.”

(B) RIGHT TO SLEEP:

An individual is entitled to sleep as comfortably and as freely as he breathes. Sleep is

essential for a human being to maintain the delicate balance of health necessary for its very
existence and survival. Sleep is, therefore, a fundamental and basic requirement without
which the existence of life itself would be in peril. To disturb sleep, therefore, would amount
to torture which is now accepted as a violation of human right.

32
Ibid.
33
The Constitution of Borissa, Pari Materia to Constitution of India
34
1978 AIR SC 597
35
Ibid.
36
Ibid.
37
Ibid.

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3.8 When police disturbed the crowd at midnight, their right to sleep was violated. Justice
B.S. Chauhan in his opinion held that right to sleep forms an essential part of Article 2138
which guarantees personal liberty and life to all. Sleep forms an essential part of living a
peaceful life, hence it is a fundamental right.

3.9 This interpretation was not called for. The question in the case needed no pronouncement
as to whether right to sleep is a fundamental right. It is undisputed that the ambit of Art.2139
is voluminous but nonetheless the courts before recognising a new right into Art.2140 must
consider its practicality and maintainability. What about the cases where a construction by the
state is going on a busy highway in night? The result would be that whenever any case
involving right to sleep will reach the courts, it will add uncertainty to Article 2141
jurisprudence. Enforcement mechanisms in our country will not be able to provide for smooth
exercise of both the state’s and individual’s interests.

4.0 As it has been stated by the SC that the people who are sleeping are half dead. As given in
the facts on 10th of October there was a police crackdown at night and the agitating teachers
were asked to leave the place and midnight and for the same police evicted the sleeping
person by use of canning, tear gas etc.

4.1 Therefore in the light of the above facts, where the teachers were asked to leave the place
but the talks failed due to which there was a police crackdown at night. The police evicted the
sleeping teachers’ forcibly by canning and use of tear gas and this pursuance of causing harm
was hence totally unjustified and improper. As they were just supporting the peaceful protest
but they were been beaten miserably by which it resulted in injuries to a number of teachers.

4.2 So as it has been stated that right to sleep is also been infringed which comes under
Article 2142 where Right to life in personal liberty is been infringed.

4.3 As Article 21 has also been infringed because it states that no person shall be deprived of
his life or personal liberty except according to procedure established by law.

38
Ibid.
39
The Constitution of Borissa, Pari Materia to Constitution of India
40
Ibid.
41
Ibid.
42
Ibid.

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4.4 The teachers who were in the support of the strike were just because they were the
temporary teachers who wanted to be permanent and the govt. were not granting the
permission. As the bread and butter of the teachers would be snatched away from them
because a teacher on the contractual basis would not be teaching for a longer duration of time
because the contractual basis is generally for a shorter period of time. So Article 2143 is been
infringed that is right to livelihood.
.

43
The Constitution of Borissa, Pari Materia to Constitution of India

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PRAYER

In the light of the issue raised, arguments advanced and authorities cited, the council for the
petitioner humbly prays that Honourable Central High Court of Borissa be pleased to
adjudge, hold and declare:

1. The writ filed is maintainable under the court of law.

2. The permission withdrawn from the Government of Borissa under section 144 of
CrPC is not justified.
3. The fundamental rights has been infringed that is Article 19&21.
4. We are also claiming compensation and damages against the Government of Borissa.

And pass any order that this Honourable court may deem fist interest equity, justice and good
conscience.

And for this kind of kindness the counsel for the petitioner shall duty bound forever pray.

Sd/-

(Counsel for petitioner)

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