JAMIA CLINICAL MOOT,2020

Submitted
In Partial Fulfilment of the Requirements
For the Degree of
Semester X ( B.A.LL.B)

Submitted By
SHANYAN YAMEEN MAZHARI
5th Year, X Semester
Roll No. 20150917
SESSION 2020-21

Submitted To
Prof. S. Z. Amani

Faculty Of Law, JMI NEW DELHI

JAMIA MILLIA ISLAMIA UNIVERSITY,

NEW DELHI, INDIA

[1]
 JAMIA CLINICAL
MOOT COURT
2020

BEFORE THE HON’BLE

SUPREME COURT OF INDIA

(UNDER ARTICLE 136 OF THE CONSTITUTION OF INDIA)

RAMPON .....................................................................................APPELLANT

V.

PROVINCE. .............................................................................. RESPONDENT

MEMORANDUM ON BEHALF OF THE APPELLANT

 TABLE OF CONTENTS

TABLE OF CONTENTS I
INDEX OF ABBREVIATIONS II
INDEX OF AUTHORITIES IV
STATEMENT OF JURISDICTION XI
STATEMENT OF FACTS XII
QUESTIONS OF LAW XV
SUMMARY OF ARGUMENTS XVI
ARGUMENTS ADVANCED 1
1. THE PENAL ACTION IMPLICATED UPON THE ACCUSED IS INVALID AND NON-
JUSTICIABLE. 1
1.1 Charges of Waging War Has Been Falsely Pressed On The Accused 1

2. THE CHARGES PRESSED AGAINST APPELLANT UNDER UAPA, 1967 AND

PMLA, 2002 ARE NOT JUSTIFIED. 10
2.1 Unlawful Activities Prevention Act 10

2.2 Prevention of Money Laundering 13

3.THE DUE PROCESS OF LAW HAS NOT BEEN COMPLIED WITH. 15

3.1 Fundamental right provided under Article 21 has been infringed 16

3.2 Charges Pressed Against Accused Has Not Been Prove Beyond Reasonable Doubt _19

3.3. Death Sentencing Policy Given By The Court Has Not Been Complied With. 20

PRAYER XXI

-MEMORANDUM for THE APPELLANT-

I
 INDEX OF ABBREVIATIONS

1. § SECTION
2. ¶ PARAGRAPH
3. & AND
4. Ads ADVERTISEMENTS
5. AIR ALL INDIA REPORTER
6. Annex. ANNEXURE
7. Anr. ANOTHER
8. Art. ARTICLE
9. BPC BAMBIA PENAL CODE
10. Cl. CLAUSE
11. Cr. CRIMINAL
12. CrLJ CRIMINAL LAW JOURNAL
13. CrPC CODE OF CRIMINAL PROCEDURE, 1973
14. CS CHARGE-SHEET
15. SDF SOIL DEFENCE FORCE
16. DW DEFENCE WITNESS
17. FIR FIRST INFORMATION REPORT
18. Govt. GOVERNMENT
19. HC HIGH COURT
20. Hon'ble HONORABLE
21. i.e. THAT IS
22. IPC INDIAN PENAL CODE, 1860
23. MANU MANUPATRA
24. No. NUMBER
25. Ors. OTHERS
26. P. PAGE
27. PS POLICE STATION
28. PW PROSECUTION WITNESS
29. r/w READ WITH
30. SC SUPREME COURT
31. SCC SUPREME COURT CASES
32. SCR SUPREME COURT REPORTER
33. Supp. SUPPLEMENTARY
34. TADA TERRORIST & DISRUPTIVE ACTIVITIES (PREVENTION) ACT
35. UAPA UNLAWFUL ACTIVITIES PREVENTION ACT
36. POTA PREVENTION OF TERRORIST ACT
37. PMLA PREVENTION OF MONEY LAUNDERING ACT
38. Pat PATIALA
39. MLJ MAHARASTHTRA LAW JOURNAL
40. Bom BOMBAY
41. LR LAW REPORTER
42. Tra-Co TRAVANCORE
43. Eds. EDITION
44. QB QUEENS BENCH
45. ER ENGLAND REPORTER
46. @ ALIAS
47. ACR ASSAM CRIMINAL REPORTER
48. U/S UNDER SECTION
49. UOI UNION OF INDIA
50. V./Vs VERSUS
51. Viz. NAMELY
52. w.r.t WITH RESPECT TO
 INDEX OF AUTHORITIES

STATUTES

1. 1 HAWK P.C. (C.), 1965.

2. CODE OF CRIMINAL PROCEDURE, 1973
3. CONSTITUTION OF INDIA, 1950
4. INDIAN PENAL CODE, 1860
5. INDIAN EVIDENCE ACT, 1872
6. PREVENTION OF MONEY LAUNDERING ACT,2002
7. TERRORIST AND DISRUPTIVE ACTIVITIES (PREVENTION) ACT, 1985
8. THE ARMS ACT,1959
9. UNLAWFUL ACTIVITIES PREVENTION ACT,1967

BOOKS

1. D.D.BASU, Constitution of India, Lexis Nexis Butterworths, Wadhwa,

Nagpur.
2. D.D.BASU, Criminal Procedure Code, 1973 , Lexis Nexis Butterworths
Wadhwa, 4th Edn, 2010.
3. GAUR K. D, The Indian Penal Code, Universal Law Publishing Co. Pvt. Ltd., 4th Ed.,
2013.
4. HARI SINGH GOUR, The Penal Law Of India, 4869, (11th Edition, Delhi Law
House, New Delhi, 2006).
5. H.M. SEERVAI, Constitutional Law of India: A Critical Commentary .
[Delhi. Universal Law Publishing Co. Ltd].
6. J. W. CECIL TURNER KENNY’S, Outlines of Criminal Law , Cambridge
University Press, 1952.
7. KELKAR R. V., Criminal Procedure Code ,Pillai Eastern Book Company, 4th Ed.
2007 (Revised by Dr. K. N Chandrasekharan).
8. M P JAIN, Indian Constitutional Law, 1180, LexisNexis Butterworths Wadhwa,
Nagpur, 2010.
 th
9. PETER MURPHY, Evidence, Oxford University Press, 11 Edition.
10. RATANLAL & DHIRAJLAL,The Code of Criminal Procedure, Lexis Nexis
Butterworths,Wadhwa,Nagpur, 20th Ed. 2011(YChandrachud J. &VRManohar J.).
11. RATANLAL & DHIRAJLAL,The Indian Penal Code, Lexis Nexis Butterworths,
Wadhwa, Nagpur, 30th Ed. 2008(Y VChandrachud J. &V R Manohar J.).
12. RATANLAL & DHIRAJLAL,The Law of Evidence, Lexis Nexis Butterworths
Wadhwa & Company Nagpur, 24th Ed. 2012 (Y V Chandrachud J. & V R Manohar
J.).
13. SARKAR on The Code of Criminal Procedure , 10th Edn, 2012, Lexis Nexis
Butterworths, Wadhwa, Nagpur.
14. SIR JOHN WOODROFFE & SYED AMIR ALI, Law of Evidence, LexisNexis
Butterworth’s, 19th Ed. Vol. II.
15. SMITH AND HOGAN, Smith and Hogan's Criminal Law, Karl Laird & David Ormerod
eds., Oxford University Press, 2015.
16. VIBHUTE K. I ,P S A Pillai’s Criminal Law,.,LexisNexis Butterworth’s, 11th Ed., 2012.

ARTICLES

1. 305th Report of the Law Commission of United Kingdom, Assisting and Encouraging
Crime/ Participating in Crime, Para 2.49, 2007.
2. ANIL KALHAN, GERALD P. CONROY, MAMTA KAUSHAL, SAM SCOTT
MILLER, AND JED S. RAKOFF “Colonial Continuities: Human Rights, Terrorism,
And Security Laws In India” Colum. J. Asian L. 93 2006-2007.
3. RAMANAND GARGE,Combating Financing of Terror: An Indian Perspective ,
Vivekananda International Foundation.
4. FATF (2015), Emerging Terrorist Financing Risks, FATF, Paris www.fatf-
gafi.org/publications/methodsandtrends/documents/emerging-terrorist-financing-
risks.html.
5. J. Venkatesan, “Binayak Sen gets bail in Supreme Court,” The Hindu, April 15, 2011,
http://www.thehindu.com/news/national/article1698939.ece?homepage=true.
6. MINORITIES IN INDIA, 11 Socio-Legal Rev. 103 2015.
7. ROBERT E RIGGS, “Substantive Due Process Of Law” , 1990 Wis. L . Rev. 941
8. ROLLIN M. PERKINS, PARTIES TO CRIME, 89 U. Pa. L. Rev. 581 1940-1941.
9. SANTOSH EJANTHKAR, The Growing Threat of Money Laundering, Capgemin
2011.
10. Sedition Laws & The Death Of Free Speech In India , Centre for the Study of Social
Exclusion and Inclusive Policy, National Law School of India University, Bangalore &
Alternative Law Forum, Bangalore, February, 2011.
11. SHYLASHRI SHANKAR, “Judicial Restraint In An Era Of Terrorism” 11 Socio-
Legal Rev. 103 2015.
12. SRIJONI SEN ET. AL, “Anti-Terrorism Law in India- A Study of Statutes and
Judgements, 2001-2014”, Vidhi – Centre for Legal Policy, June 2015.
13. VIVEK CHADDHA, “Life Blood of Terrorism”, Bloomsbury Publishing India Pvt.
Ltd., 2011.

DYNAMIC LINKS

1. www.manupatra.com
2. www.scconline.com
3. www.heinonline.org
4. www.westlawindia.com
5. www.lexisnexis.com
6. www.ebscohost.com

IMPORTANT DEFINITIONS

1. Appellant for the purpose of this memorandum shall stand for Rampon.
2. Respondent for the purpose of this memorandum shall stand for Province.

CASES

1. A.K. Roy v. Union of India, (1982) 1 SCC 27 13

2. Ajay Agarwal v. Union of India &Ors, AIR 1993 SC 1637 8
3. Alamgir v. State of Bihar, AIR 1959 SC 436 19
4. Aravindan & Ors. v. State Of Kerala, 1983 CriLJ 1259 4
5. Arun v. State of Mahrashtra, 2009 CrLJ 2065 14
6. Arup Bhuyan v. State of Assam (2011) 3 SCC 377 9, 12
7. Ashubha Bharatsinh Gohil v. State of Gujarat (1994) 4 SCC 353. 19
8. Attorney General for India v. Amratlal Prajivandas, 1994) 5 SCC 54. 13
9. Babulal v. State, AIR 1960 All 223 14
10. Bachan Singh v. State of Punjab, AIR 1980 SC 898 21
11. Balwant Singh v. State Of Punjab 1995 (1) SCR 411 6
12. Barinder Kumar Ghose v. Emperor AIR 1925 PC 1 8
13. Bayyappanavara Muniswamy and Ors v. Respondent, (1954) Cr LJ 905 3
14. Bharat Barrel and Drum Manufacturing Co. v. Amin Chand Pyarelal (1999) 3 SCC 35
14
15. Bhobhoni Sahu v. King, AIR 1949 PC 257 3
16. Bhupendrasinh A Chudasma vs. State of Gujarat, (1998) 2 SCC 603 14
17. Brandenburg v. Ohio, 395 US 444(1969) 12
18. C.J.Rajan v. Deputy Superintendent of Police reported in (2008) 3 MLJ 926. 11
19. Commonwealth v. John W. Webster 5 Cush. 295, 320 (1850) 20
20. De Jonge v. Oregon, 299 US 353 (1937) 13
21. Devender Pal Singh v. State, AIR 2002 SC 1661 3
22. District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496 17
23. DPP For Northern Ireland v. Maxwell (1978) 3 All ER 1140 9
24. EG Barsay v. State of Bombay, (1962) 2 SCR 299 8
25. Elfbrandt v. Russell 384 US 17(1966). 11
26. Emperor v. Ganesh Damodar Savarkar, (1910) 12 Bom LR 105 4
27. Emperor v. Hasrat Mohani AIR 1922 Bom. 284 4
28. Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746 17
29. Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347 18
30. Hussain Umar v.Dalip Singhji AIR, 1970 SC 45 8
31. Jubba Malla v. Emperor, (1943) 22 Pat 662 2
32. Kalpnath Rai v. State, (1997) 8 SCC 732 10
33. Kartar Singh v. State of Punjab (1994) 3 SCC 569 15
34. Kashmira Singh v. State Of Madhya Pradesh, AIR 1952 SC 159 3
35. Kedar Nath Singh V. State Of Bihar AIR 1962 SC 955 5
36. Keher Singh and Ors v. State, AIR 1988 SC 1883 3
37. Krishnan & Anr. v. State(2003) 7 SCC 56 20
38. Krishnan and Anr. v. State (2003) 7 SCC 56. 20
39. Lakshman Prasad v. State of Bihar, 1981 CrLR 478 3
40. Lakshmanan v. Lakshmanan, AIR 1964 MAD 418 14
41. Lakshmiammal v. Samiappa Goundar, (1968) 1 MLJ 226 2
42. Lennari Schussler & Anr v. Director of Enforcement & Anr (1970) SCR (2) 760 8
43. Lingaram Kodopi v. State of Chhattisgarh, (2014) 3 SCC 480 6
44. Machi Singh v. State of Punjab, AIR 1983 SC 947 21
45. Maganlal Radha Kishan v. Emperor, AIR 1946 Nag. 173 1
46. Maneka Gandhi v. Union of India, (1978) 1 SCC 248. 16
47. Mohammad Yusuf Monin v. State of Maharashtra, (1971) 1 SCR 119 8
48. Mohd. Arif v.The Registrar, Supreme Court of India, (2014) 9 SCC 737 19
49. Mohd. Ramzani v. State of Delhi AIR 1980 SC 1341 14
50. Naranjan Singh v. State of Punjab, AIR 1952 SC106 17
51. Nathulal v. State of M.P., AIR 1966 SC 43 16
52. Nishikanta v. Calcutta Corporation, AIR 1953 Cal 401 14
53. Noto v. U.S, 367 US 290(297-298) 11
54. OMA@ Om Prakash & Anr. vs. State of Tamil Nadu, AIR 2013 SC 825 17
55. Omkar Nath Singh v. State of U.P, AIR 1974 SC 1550 14
56. P K. Narayanan v. State Of Kerala, (1995) 1 SCC 142 3
57. P.Nedumaran v. State of Tamil Nadu and others, 1999 (1) LW (Crl.) 7 11
58. P.S.R Sadhanantham v. Arunachalam, AIR 1980 SC 856 17
59. Pran Krishna Chakravarty & Ors. v. Emperor, AIR 1935 Cal 580 3
60. Pratap V. State of U.P, AIR 1976 SC 966 14
61. R v. Andrew Hardie, (1820) 1 St. Tr. (N.S) 610 2
62. R v. Bainbridge, [1960] 1 QB 129 9
63. R v. Frost., (1839) 4 St. Tr. (N.S) 85 1
64. R v. Hardie, (1820) 1 St. Tr. (N.S.)765 1, 5
65. R vs Andrew Hardie (1820) 1 St. Tr. (N.S) 610 2
66. R.K Dalmia & Anr v. The Delhi Administration, (1963) 1 SCR 253 8
67. Rafiq v. State of Maharashtra, AIR 1979 SC 1179 14
68. Raghbir Singh v. State of Haryana, AIR 2009 SC 1223 14
69. Ram Narain v. State of U.P AIR 1971 SC 757 19
70. Ram Naresh & Ors. v. State of Chhattisgarh (2012) 4 SCC 257 21
71. Ramakant Rai v. Madan Rai and Ors., ( 2002) 12 SCC 395 20
72. Ravula Hariprasada Rao v. State, AIR 1951 SC 204 16
73. S. Rangarajan etc v. P. Jagjivan1989 SCR (2) 204 5
74. Scales v. U.S 367 US 203 (229) 12
75. Schneiderman v. U.S 320 US 118 (136) 12
76. Schware v. Board of Bar Examiners 353 US 232(246) 12
77. Soni Sori v. State of Chhattisgarh, (2014) 3 SCC 482 6
78. Sri Indra Das vs. State of Assam, 2011(3)ACR2530(SC) 9, 12
79. Srinivas Mall Bairoliya v. King-Emperor, AIR 1947 PC 135 16
80. State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820 8
81. State of Kerala v. Raneef , (2011) 1 SCC 784 12
82. State of M.P v. Ahmadulla, AIR 1961 SC 998 14
83. State of Maharashtra & Ors. v. Bhaurao Punjabrao Gawande (2008) 3 SCC 613 13
84. State of Punjab v. Baldev Singh, AIR 1999 SC 2378. 18
85. State of Tamil Nadu via the Superintendent of Police v. Nalini, (1999) 5 SCC 253 3
86. State v. Kolis Hira, AIR 1961 Guj 8 14
87. State v. Nalini, AIR 1999 SC 2640 8
88. Supdt & Remembrancer, Legal affairs, WB v. S Bhowmick, AIR 1981 SC 917,923 17
89. Superintendent, Central Prison v. Ram Manohar Lohia, 1960 SCR (2) 821 5
90. Unni Krishanan v. State of Andhra Pradesh, AIR 1993 SC 2178 17
91. UOI v. Prafulla K Sanal, 1979 SCC (Cri) 609 4
92. V.C Shukla v. State (Delhi Admn), AIR 1980 SC 1382 8
93. Vakil Prasad v. State Of Bihar, AIR 2009 SC 1822 17
94. Varkey Joseph v. State of Kerala, AIR 1993 SC 1892 18
95. Venu nair v. Travancore-Cochin State AIR 1955 Tra-Co 33 7
96. Whitney v. California, 274 US 357 (1927) 12
97. Yakub Abdul Razak Memon v. State of Maharashtra, 2013 SCC OnLine SC 257 13
98. Yashpal v. State of Punjab (1977), SCR 2433 8
99. Yogendra Moraji v. State of Gujrat, AIR 1980 SC 60 14
 STATEMENT OF JURISDICTION

The Hon’ble Supreme Court of India has the inherent jurisdiction to try, entertain and dispose
of the present case by virtue of Article 136 of The Constitution of India.

“Article 136- Special Leave to Appeal by the Supreme Court

(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant
special leave to appeal from any judgment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in the territory of India
(2) Nothing in clause ( 1 ) shall apply to any judgment, determination, sentence or order passed
or made by any court or tribunal constituted by or under any law relating to the Armed Forces”
 STATEMENT OF FACTS

I
India is one of the largest countries in the world with cultural, lingual and religious diversity
with rich heritage. It is a quasi-federal, only democratic country and a leading economic player
in the Asian Region.
The Government of India authorized corporate players to extract minerals. The initiative was
opposed on a large scale by the people of Jharkhand in general and by the predominantly tribal
districts in particular. The government deployed police and para-military forces (PMF) to
suppress the protests; but gradually the protests became more organised and the protesters
launched armed resistance (SDF) against Government initiatives. In the ensuing conflict
between SDF and Governmental forces, casualties were reported from both sides. Ribon
continued his business in Gumla and Ranchi, even after the dispute.
II
1 March, 1993- PMF personnel roaming near Ribon’s locality. Around 2.00 am when his
family was asleep, few men in PMF attire knocked on his door and enquired about Ribon from
the servant, who opened the door. Ribon was then interrogated about certain SDF people who
were making purchases from his shop during daytime and was taken away for further enquiries.
Next morning at 10.00 am, when Ribon did not return home, his family members tried to trace
him but the police found his dead body on the outskirts of the Gumla forest range.
After a Week (7 or 8 March 1993) – PMF shot all the family members, Rampon escaped and
lived with his uncle Akande. He managed studies and work together. Depressed individual but
bright student in academics influenced by writing different interpretations to the texts of Marx,
Engles and Mao.
III
2002- Rampon applied for common wealth scholarship and made it to a prestigious university
of England for higher studies and chose a topic ‘Majoritarian Democracy and the Plight of
Indigenous Minorities: A Socialist Perspective on Justice’ for his research project. Rampon’s
life changed thereafter. With his conversations and discussions he became very popular among
his batch mates. He started addressing the gatherings in the local community halls and
gave them different insights of socialist ideals. Soon, many popular and influential people
started coming to the places where Rampon addressed the public gatherings. A fan page was
created on facebook followed by an account in his name by the end of 2005. Rampon and his
followers thought of propagating essence of socialism in the western world on a larger scale,
thereby conducting workshops in various places of North America and European Union.
IV
2009- Rampon became a popular name among communist countries. His views went viral on
all the social media and had around half a million followers on Twitter Rampon secured a
domain name truesocialism.org to update his followers on the developments and scheduling of
his events and programmes.
‘Quattics’, a company incorporated in Virginia (USA), offered him to be the ambassador for
their Corporate Social Responsibility (CSR) avenues. Quattics is engaged in research and
manufacture of nuclear and other technologically advanced weapons and has business
transactions worldwide to supply and deliver weapons to Governments and other organizations.
V
14th August, 2010- trueisocialism.org crossed the mark of 20 million followers. He also
formed an NGO with the same name True-Socialism. True-Socialism received funds from
around the world and its contributors include politicians, heads of states, corporations, and so
on. Some of its contributors include the ones that are blacklisted by some western countries.
Nevertheless, the organization became a platform for all sorts of monetary contributions.
Quattics floated 20 million dollars subscribed capital. True-Socialism joined Alberico Co. Ltd.(
Jamaica), a television news channel and later acquired the majority of above floated capital of
Quattics. The funds received by true socialism thereafter were diverted for some other
purposes.
VI
5th December, 2012- Rampon and his group of six followers visited tribal people in the jungle
areas of Jharkhand. Rampon was received with open arms. Rampon happened to visit Ranchi
wherein he was overwhelmed by his childhood memories, and one midnight he was seen crying
and screaming on the outskirts of Gumla forest range.
VII
Six Months Later( June 2013 tentatively)- Rampon married Amati, a lady doctor there who
happened to be the step daughter of one of the SDF leaders Memboya. Rampon moved around
to propagate his ideas as well as for business endeavors. But primarily, he resided in Jharkhand.
Through his NGO True-Socialism he opened the Institute for Studies in Scientific Socialism in
Lohardaga and Palamu (districts).

VIII
5th June, 2013- 4 persons with heavy range weapons were arrested for attempting to attack a
police station in Garhwa district of Jharkhand. During interrogation, two of them chewed
cyanide and the remaining two confessed to being the alumni of Institute for Studies in
Scientific Socialism, Lohardaga and ID proofs of Neoland nationalities were recovered from
all four of them.
Two weeks later(19/20 June 2013), during midnight, in an attack against PMF camp in the
remote area of Latehar district of Jharkhand, 136 people were killed, including civilians and
PMF personnel and weapons embossed with Quattics were recovered from the scene.
23 August, 2013- Jagganagar tribal riots broke out and around 100 people from other provinces
were killed.
IX
25th November 2014- Parliament of India was attacked by 20 armed persons, killed 3
gardeners and 4 security personnel. Thereafter, with the intervention of security forces 18
intruders were killed and 2 were arrested by the police. A detailed enquiry revealed the
involvement of True-Socialism and the funds received from TrueSocialism. Further enquiry
was not conducted as Rampon was in China for past two months to deliver lectures on
socialism.
X
11th February, 2015-Rampon was arrested from Delhi airport. The Sessions Court sentenced
him to life imprisonment. On an appeal, the High Court confirmed the charges but enhanced
the punishment to death penalty. Rampon filed a petition to the Hon’ble Supreme Court of
India in April 2016.
 QUESTIONS OF LAW

1. WHETHER THE CHARGES UNDER PENAL LAW IMPLICATED UPON

THE ACCUSED IS VALID AND JUSTICIABLE?

2. WHETHER THE CHARGES PRESSED AGAINST APPELLANT UNDER

UAPA, 1967 AND PMLA, 2002 ARE JUSTIFIED?

3. WHETHER THE DUE PROCESS OF LAW HAS BEEN COMPLIED WITH?

 SUMMARY OF ARGUMENTS

1. THE CHARGES UNDER PENAL LAW IMPLICATED UPON THE

ACCUSED IS INVALID AND UNJUSTIFIABLE
The Counsel on behalf of Rampon (hereinafter Appellant) most humbly submits that the penal
action imposed on him is invalid and unjustifiable. The Sessions Court and High Court have
erroneously charged him u/s 121 and 121-A of IPC, 1860 without any substantial evidence and
the HC has enhanced his punishment to death from life imprisonment. The appellant has been
subjected to procedural lapse on the part of the State as the charges framed against him are
totally futile without any legal standing over it. The appellant has been framed on such charges
on a mere presumption without any direct evidence against him.
2. THE CHARGES PRESSED AGAINST APPELLANT UNDER UAPA, 1967
AND PMLA, 2002 ARE NOT JUSTIFIED
The Counsel on behalf of Rampon (hereinafter Appellant) most humbly submits that the
charges pressed against him under UAPA, 1967 and PMLA, 2002 are not true. There is no
substantial evidence to prove beyond reasonable doubt appellant’s guilt. The appellant has been
charged under such provisions of Unlawful Activities (Prevention) Act, 1967 that deal with
terrorist activities. Such provisions construe strict liability upon the appellant and these
provisions should be used judiciously. The respondent (State) has charged the appellant with
such provisions under mere suspicion where no direct evidence is found against the appellant.
3. DUE PROCESS OF LAW HAS NOT BEEN COMPLIED WITH
The Counsel on the behalf of Rampon (hereinafter Appellant) most humbly submits that the
due process of law has not been complied with by the State. The Constitution of India, 1950
provides every citizen a fundamental Right to Life, Equality and Fair Trial. All such
fundamental rights have been surpassed by the State and the appellant has been charged with
the provisions of the draconian UAPA, 1967 which deals with terrorist activities. Thus in the
instant case, the appellant has been subjected to bias on the part of the State where such
fundamental rights which are expressly guaranteed under the Constitution of India have not
been complied with.
 ARGUMENTS ADVANCED

1 THE CHARGES UNDER PENAL LAW IMPLICATED UPON THE ACCUSED IS

INVALID AND UNJUSTIFIABLE.
The Counsel on behalf of Rampon (hereinafter Appellant) most humbly submits that the penal
action imposed on him is invalid and un-justifiable. The Sessions Court and High Court have
erroneously charged him u/s 121 and 121-A of Indian Penal Code , 1860 without any
substantial evidence and the High Court has enhanced his punishment to death from life
imprisonment.

1.1 Charges of Waging War Has Been Falsely Pressed On The Accused

As per Section 121 of Indian Penal Code, “Whoever, wages war against the [Government of
India], or attempts to wage such war, or abets the waging of such war, shall be punished with
death, or [imprisonment for life] [and shall also be liable to fine].”

Section 1211, 121-A2 of the Indian Penal Code, 1860 enumerates upon the waging of war
against the Government. To prove waging war, it is the purpose and intention, the object they
have in view which congregates and assembles them together, which gives them the impulse
in their arming and in their rising, it is that which constitutes treason and distinguishes crime
from that of riot or any other rising for a private purpose that can be imagined.3

In order to constitute high treason by levying war, there must be an insurrection, there must be
force accompanying that insurrection; and it must be for the accomplishment of an object of a
general nature.4

Presently, to obtain the abovementioned ingredients a link has been drawn between 2 major
events that happened in the years 2013 and 2014: 1.Attempted attack on police station in

1
§121, Bambia Penal Code, 1860. [Whoever, wages war against the Government of India, or attempts to wage
such war, or abets the waging of such war, shall be punished with death, or imprisonment for life and shall also
be liable to fine].
2 §121A, Bambia Penal Code, 1860. [Conspiracy to commit offences punishable by Section 121 Whoever within

or without India conspires to commit any of the offences punishable by Section 121, or conspires to overawe, by
means of criminal force or the show of criminal force, [the Central Government or any State Government , shall
be punished with imprisonment for life, or with imprisonment of either description which may extend to ten years
and shall also be liable to fine].
3
Per Lord President Hope in R v. Hardie, (1820) 1 St. Tr. (N.S.)765.
4
R v. Frost., (1839) 4 St. Tr. (N.S) 85; Maganlal Radha Kishan v. Emperor, AIR 1946 Nag. 173.
Latihar5; 2. Attack against PMF camps6, Jagganagar tribal riots7, Social media post and
Parliament Attack8

1.1.1 Police station attack in Latihar, attack against PMF and Jagganagar Tribal Riots
will not amount to waging war
The involvement of the accused in these incidents is neither shown nor proved and even if that
fact is disregarded, the charge of waging war has been wrongly pressed as these incidents can
at the maximum amount to riots9.

It is a matter of great difficulty to distinguish and establish as to whether there has been levying
or waging of war, or merely a riot of a serious kind.10 Prima facie, a person who attacks a
police station is guilty of rioting and if the Government charges him with waging war against
it then it is incumbent upon the Government to show that there is an insurrection and not a riot
and the insurrection is for the accomplishment of an object of a general nature.11Also, to prove
an offence of rioting: 1. There has to be use of force or violence 2. By an unlawful assembly or
any member thereof, 3. In prosecution of such common object of such assembly.12

Here, the common object of the assembly must undoubtedly be illegal, for there can be no riot
where force is employed to vindicate a lawful right, where such use is not only lawful but
commendable.13 Therefore, the evidence required to establish a case under S.121 must be
directed towards proving of the following points:
1. That the accused waged war or attempted to do so or abetted the same.
2. That such war was against the Government of India.14
It is well settled that an accused cannot be convicted, if there are inherent improbabilities in the
prosecution evidence regarding participation in crime.15 Therefore, it is the duty of the

5
Page 5, ¶14, Moot proposition,Jamia Clinical Moot Court 2020.
6
Page 5, ¶14, Moot proposition, Jamia Clinical Moot Court 2020.
7
Page 5, ¶14, Moot proposition, Jamia Clinical Moot Court 2020.
8
Page 6, ¶16, Moot proposition, Jamia Clinical Moot Court 2020.
9
Page 5, ¶¶14, 15, Moot proposition, Jamia Clinical Moot Court 2020.
10
Per Lord Hope in R v. Andrew Hardie, (1820) 1 St. Tr. (N.S) 610 at p.623.
11
Per CJ Cullins, -“ The distinction levying war against the King and committing a riot seems to consist in this,
although they may often run very nearly into each other. Where the rising or tumult is merely to accomplish some
private purpose, interesting only to those engaged in it, and not resisting or calling in question the King’s authority
or prerogative then the tumult, however numerous or outrageous the mob may be, is held only to be a riot.”, Jubba
Malla v. Emperor, (1943) 22 Pat 662.
12
Lakshmiammal v. Samiappa Goundar, (1968) 1 MLJ 226.
13
§2, 1 Hawk P.C. (C.), 1965; Hazara Singh v. State of Punjab, (1971) 1 SCC 529.
14
HARI SINGH GOUR, THE PENAL LAW OF INDIA, 4869, (11th Ed., Delhi Law House, New Delhi, 2006).
Court to scrutinize the evidence carefully16, which in the instant case are only self-proclaimed
facts, and even if believed to be true, they do not directly implicate the culpability of the
accused.

Merely meeting or association of the accused would by itself not be sufficient to infer the
existence of criminal conspiracy, thus mere evidence of the same is not enough to bring home
the offence of criminal conspiracy.17 Privacy and secrecy are characteristics of conspiracy18
thus if the appellant had been a part of this conspiracy, he would have gone underground and
would not show up to anyone else.19 However, he took out a congregational procession and
was in prime time news regarding his pro-tribal movements. There has to be cogent evidence
against each one of the accused charged with the offence of conspiracy.20 The concurrence of
agreement cannot be inferred by a set of irrelevant facts, artfully arranged so as to provide
superficial coherence. Therefore such innocuous, innocent and inadvertent events and incidents
should not enter judicial verdict.21

It is submitted that prosecution’s case at best gives rise to a suspicion, however, a different
version of the facts is equally possible. It pertinent to bear in mind that the offence of conspiracy
cannot be established on mere suspicion and surmises or inferences which are not supported
by cogent evidence.22 It has been held that the law of criminal conspiracy is an instrument of
government oppression.23 Even the Hon’ble Supreme Court of India has suggested utmost
diligence while dealing with the charge of criminal conspiracy. Wherein, the Court has to guard
itself against the danger of unfairness to the accused.24

In the instant case, the lower courts have failed in establishing that it falls under the relevant
provisions. Since the evidence adduced is circumstantial in nature, lacking of any
corroboration, there is no waging of war in the present instance.

15
Lakshman Prasad v. State of Bihar, 1981 CrLR 478.
16
Bhobhoni Sahu v. King, AIR 1949 PC 257; Kashmira Singh v. State Of Madhya Pradesh, AIR 1952 SC 159.
17
Pran Krishna Chakravarty & Ors. v. Emperor, AIR 1935 Cal 580.
18
Bayyappanavara Muniswamy and Ors v. Respondent, (1954) Cr LJ 905.
19
Infra Note 20; Here, the LTTE Commander went underground after hatching the conspiracy of the Rajiv Gandhi
Assassination. The Court cited this stating that conspiracy is mostly hatched in secrecy and a person going away
from the public after conspiring against someone is enough evidence to implicate them.
20
State of Tamil Nadu via the Superintendent of Police v. Nalini, (1999) 5 SCC 253.
21
Devender Pal Singh v. State, AIR 2002 SC 1661; Keher Singh and Ors v. State, AIR 1988 SC 1883.
22
P K. Narayanan v. State Of Kerala, (1995) 1 SCC 142; Supra Note 17 at pg. 524.
23
K.D GAUR, INDIAN PENAL CODE, 826, (4th ed. reprint, Universal Law Publishing, New Delhi, 2009).
24
State of Tamil Nadu via the Superintendent of Police v. Nalini, (1999) 5 SCC 253.
A haphazard collection of facts on which the prosecution relies cannot be held to be adequate
for connecting the accused with the commission of a crime of criminal conspiracy. It has to be
shown that all means adopted including the illegal acts done were in furtherance of the object
of the conspiracy hatched.25 To this regard, it is submitted that the conduct of the appellant is
not coherent to establish any common intention. Further, meeting of minds is crucial for any
conspiracy to be executed and since there is no meeting of minds between the appellant and the
attackers, he cannot be accused of such conspiracy or any part of it whatsoever.26

1.1.2 Social Media Post and response to it will not amount to waging war

It is humbly submitted before this Hon’ble Court that the congregational procession called for
by TrueSocialism on 5th October, 201327, solely aimed at making the country aware of the tribal
rights. Thus, it can be considered as anything but waging of war. Even if we consider that the
appellant was involved in serious rioting, the charge does not subsist because, (1) There was
no use of violence or force by the appellant; (2) There was no unlawful assembly;
(3) The common object was aimed at making the country aware of the tribal rights.

It is explicitly acknowledged that so long as a man only tries to inflame feelings or to excite a
state of mind, he is not guilty of anything more than sedition. It is only when he definitely and
clearly incites to action that he is guilty of instigating and therefore abetting the waging of war.
The main purpose of the instigation should be waging of war.28

In Ganesh D Savarkar case29it was observed that so long as a man only tries to inflame feeling,
to excite a state of mind, he is not guilty of anything more than sedition. The word ‘overawe’
clearly imports more than the creation of apprehension or alarm or fear. A slogan that the
government can be changed by an armed revolution does not mean that there is a conspiracy to
change the Government by criminal force; at best it means that the petitioners want to educate
the people that by force only the government could be changed.30 Section 124-A of BPC31
mentions about the offense of Sedition. Article 19 of the Constitution of

25
State (NCT of Delhi) v. Navjot Sandhu, AIR 2005 SC 3820.
26
UOI v. Prafulla K Sanal, 1979 SCC (Cri) 609.
27
Page 6, ¶15, Moot proposition, Jamia Clinical Moot Court 2020.
28
Emperor v. Hasrat Mohani, AIR 1922 Bom. 284.
29
Emperor v. Ganesh Damodar Savarkar, (1910) 12 Bom LR 105.
30
Aravindan & Ors. v. State of Kerala, 1983 CriLJ 1259.
31
§124A, Indian Penal Code, 1860. [Whoever, by words, either spoken or written, or by signs, or by visible
representation, or otherwise, brings or attempts to bring into hatred or contempt, or excites or attempts to excite
India, 195032 envisages protection of certain rights regarding freedom of speech. When the
Supreme Court, in the landmark judgement of Kedar Nath Singh v. State of Bihar33 has
specifically laid down that the provisions of S.124-A34 are only made out where there is a
tendency to public disorder by use of violence or incitement to violence, also the scope of
‘public order’ was discussed.

The Supreme Court35observed that since Sedition was not included in Art. 19(2)36, it implied
that a more liberal understanding was needed in the context of a democracy. They made a
distinction between a strong criticism of the government from those words which excite with
the inclination to cause public disorder and violence. They also distinguished between “the
government established by law” and “persons for the time being engaged in carrying on the
administration”. One of the most significant tests that have emerged after Lohia’s37 and
Kedarnath’s38 case is the analogy of ‘spark in a powder keg’39. In S. Rangarajan Etc v. P.
Jagjivan40 the court explicitly held that while there has to be a balance between free speech and
restrictions for special interest, the two cannot be balanced as though they were of equal weight.
Therefore, advocating revolution, or advocating even violent overthrow of the state, does not
amount to sedition, unless there is incitement to violence, and more importantly, the incitement
is to ‘imminent’ violence. Thus, in Balwant Singh v. State of Punjab41, the

disaffection towards. 2 the Government established by law in 3[India], 4 shall be punished with 5[imprisonment
for life], to which fine may be added, or with imprisonment which may extend to three years, to which fine may
be added, or with fine.]
32
Article 19, Constitution of India, 1950, Protection of certain rights regarding freedom of speech.
33
Kedar Nath Singh v. State of Bihar AIR 1962 SC 955.
34
Section 124-A of BPC, 1860.
35
Supra Note 33
36
Article 19(2) Constitution of India, 1950. [Nothing in sub clause (a) of clause (1) shall affect the operation of
any existing law, or prevent the State from making any law, in so far as such law imposes reasonable restrictions
on the exercise of the right conferred by the said sub clause in the interests of the sovereignty and integrity of
India, the security of the State, friendly relations with foreign States, public order, decency or morality or in
relation to contempt of court, defamation or incitement to an offence.]
37
Superintendent, Central Prison v. Ram Manohar Lohia, 1960 SCR (2) 821.
38
Supra note 36.
39
The analogy of a spark in a powder keg brings in a temporal dimension of immediacy where the speech should
be immediately dangerous to public interest.
40
Per Justice K Shetty, “Our commitment of freedom of expression demands that it cannot be suppressed unless
the situations created by allowing the freedom are pressing and the community interest is endangered. The
anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus
with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other
words, the expression should be inseparably locked up with the action contemplated like the equivalent of a “spark
in a powder keg”, S. Rangarajan Etc v. P. Jagjivan 1989 SCR (2) 204.
41
Balwant Singh v. State of Punjab 1995 (1) SCR 411.
Supreme Court overturned the convictions for ‘sedition’, and ‘promoting enmity between
different groups on grounds of religion, race etc.’,42 and acquitted persons.

Misuse of Sedition Law- There has been rampant misuse of the sedition law despite the judicial
pronouncement in Kedar Nath’s Case43 circumscribing the scope of this law. The Government
has filed a wide range of charges against those suspected of being Maoist sympathizers,
including civil society activists. These have included waging war on the state, possession of
illegal weapons, and membership of a banned organization. In cases of Lingaram Kodopi44
and Soni Sori45, sedition was among the charges filed against the activists. Dr. Binayak sen, a
medical doctor and activist with the PUCL, a long-time critic of government policy towards
the Maoists. Sen had earlier criticized this 2006 law because it permitted detention for
“unlawful activities,” a term so loosely defined that it can be used to curtail peaceful activities
of individuals and civil society organizations in violation of the Indian Constitution and
international human rights law. In April 2011 the Supreme Court granted Sen with bail. 46
Supreme Court justices H.S. Bedi and C.K. Prasad stated:

“We are a democratic country. He may be a sympathizer. That does not

make him guilty of sedition. No case of sedition is made out on the basis of
materials in possession unless you that show that he was actively helping
or harbouring them [Maoists].”47

Therefore, in the instant case, the Counsels on behalf of appellant respectfully put forth that the
appellant was exercising his fundamental right of freedom of speech & expression by making
statements against certain anti-tribal policies of the government it did not incite the crowd
towards immediate and imminent violence. The appellant has been implicated on the basis of
a social media post which says, “Go to places where you have come from, anti-tribal activities
shall not be tolerated by congressional procession at Badheli; surely revenge shall be taken.”
The appellant was a strong proponent of socialism dedicated for the cause of tribal rights and
the disadvantaged Sections of society. When there was much chaos with respect to tribal rights,
he criticized and exhibited zero tolerance towards the government on their anti- tribal policies.
The particular injustice of convicting a person who has merely exercised his
42
§153A, Indian Penal Code: [Promoting enmity between different groups on grounds of religion, race, place of
birth, residence, language, etc., and doing acts prejudicial to maintenance of harmony.]
43
Supra note 36.
44
(2014) 3 SCC 480.
45
Soni Sori v. State of Chhattisgarh, (2014) 3 SCC 482.
46
J. Venkatesan, “Binayak Sen gets bail in Supreme Court,” The Hindu, April 15, 2011, available at
http://www.thehindu.com/news/national/article1698939.ece?homepage=true (last accessed on 19.05.2020).
47
Id.
Constitutional right to freedom of expression has attracted the attention to the draconian legacy
of this law. The word ‘revenge’ can be interpreted in numerous ways. He was fighting for the
noble cause of tribal rights. He was the voice of the oppressed Section of the tribal community.

1.1.3 The parliamentary attack, proves the involvement of the True socialism, not of the
accused

The Counsel humbly submits that the involvement of accused in parliamentary attack has not
been proved by definitive evidence and even if involvement of True socialism has been
shown48. The Court in Venu Nair v. Travancore – Cochin State 49
has held : (i) that it was
open to the members of the society to achieve the object of the end of capitalism and private
ownership and establishment of a socialist state by all peaceful means, ceaselessly fighting
public opinion that might be against them and opposing those who desired the continuance of
the existing order of society and the present government; (ii) that it would also be legitimate to
presume that they desired a change in the existing government so that they could carry out their
programme and policy. But from these it did not follow that the society desired to bring about
the change by force and violence; (iii) that the mere use of the words ‘fight’ and ‘war’ in their
pledge, did not necessarily mean that the society planned to achieve its object by force and
violence.

The Court must be cautious in adopting an approach which has the effect of bringing within
the fold of Section 12150 all acts of lawless and violent acts resulting in destruction of public
properties, etc., and all acts of violent resistance to the armed personnel to achieve certain
political objectives. The moment it is found that the object sought to be attained is of a general
public nature or has a political hue, the offensive violent acts targeted against the armed forces
and public officials should not be branded as acts of waging war. The expression “waging war”
should not be stretched too far to hold that all the acts of disrupting public order and peace
irrespective of their magnitude and repercussions could be reckoned as acts of waging war
against the government. A balanced and realistic approach is called for in construing the
expression “waging war” irrespective of how it was viewed in the long past.

48
Page 6, ¶16, Moot proposition, Jamia Clinical Moot Court 2020.
49
Venu Nair v. Travancore – Cochin State, AIR 1955 Tra-Co 33.
50
Indian Penal Code, 1860.
Having read the above well laid down principles, we can cull out 9 general principles to be
applied as mentioned in Afzal Guru’s case.51
“A person who is not the principle offender must be proved to have abetted it in
this case. The relationship between conspiracy and secondary liability is also
worth noticing since it can be particularly complex”.

As per Section 120A52

“ when two or more persons agree to do, or cause to be done – an illegal act or
an act which is not illegal by illegal means , such an agreement is designated a
criminal conspiracy.”

Conspiracy is conceived as having three elements: (1) agreement;53 (2) between two or more
persons by whom the agreement is effected; and (3) a criminal object which may be either
the ultimate aim of the agreement, or may constitute the means, or one of the means by
which that aim is to be accomplished. It is immaterial whether this is found in the ultimate
objects.54

A crime is complete as soon as the agreement55 is made, but it does not end with the making
of the agreement. It will continue so long as there are two or more parties to it intending to
carry into effect the design.56

In Barinder Kumar Ghose v. Emperor57, Jetkins CJ observed “though to establish the charge
of conspiracy there must be an agreement, there need not be proof of direct meeting or
combination, nor need the parties be brought into each other’s presence; the agreement may be
inferred from circumstances raising a presumption of a common concerted plan to carry out the
unlawful design.58

In Arup Bhuyan v. State of Assam59, even assuming that the appellant was a member of ULFA
which is a banned organization, there is no evidence to show that he did acts of the

51
State (N.C.T. of Delhi) v. Navjot Sandhu @ Afsan Guru, AIR 2005 SC 3820.
52
Indian Penal Code, 1860.
53
EG Barsay v. State of Bombay, (1962) 2 SCR 299; Yashpal v. State of Punjab (1977), SCR 2433;
Mohammad Yusuf Monin v. State of Maharashtra, (1971) 1 SCR 119; R.K Dalmia & Anr v. The Delhi
Administration, (1963) 1 SCR 253; Lennari Schussler & Anr v. Director of Enforcement & Anr (1970) SCR
(2) 760.
54
Ajay Agarwal v. Union of India & Ors, AIR 1993 SC 1637.
55
Hussain Umar v. Dalip Singhji, AIR 1970 SC 45.
56
Supra note 52.
57
Barinder Kumar Ghose v. Emperor AIR 1925 PC 1.
58
State v. Nalini, AIR 1999 SC 2640; V.C Shukla v. State (Delhi Admn), AIR 1980 SC 1382.
59
Arup Bhuyan v. State of Assam (2011) 3 SCC 377.
nature above mentioned. Thus, even if he was a member of ULFA, it has not been proved that
he was an active member and not merely a passive member.60

The Secondary Liability arises only when the principal offense is committed. To hold the
secondary party liable, the actus reus of abetting, aiding, procuring or Counselling with
relevant mens rea is needed. The intention to assist and knowledge of the relevant
circumstances rendering principal offender’s act criminal is required. The mens rea of the
secondary party are complex, but can be summarized as thus:
1. The secondary party must intend to assist or encourage the principal offender’s conduct,
or in the case of procuring, to bring the offence about.
2. The secondary party must have the knowledge as to the essential elements of the
principal’s offence(including the facts where the principal bears strict liability)61
Knowledge of essential elements in abetting an offense of strict liability, the principal offender
may be convicted but the secondary party cannot be convicted without mens rea.62 There should
be knowledge of the type of crime to be committed by the principal offender. Mere knowledge
that some illegality was contemplated is not sufficient.63 In DPP for Northern Ireland v.
Maxwell64, if secondary party gives assistance to principle offender, knowing that the offender
intends to commit a crime, but uncertain of the type, the secondary party will be liable here.

In Kartar Singh v. State of Punjab65

Therefore, in order to remove the anomaly in the vague and imprecise definition
of the word, ‘abet’, we for the abovementioned reasons, are of the view that the
person who is indicted of communicating or associating with any person or class
of persons who is engaged in assisting in any manner terrorists or disruptionists
should be shown to have actual knowledge or to have reason to believe that the
person or class of persons with whom he is charged to have communicated or
associated is engaged in assisting in any manner the terrorists and
disruptionists.

60
Sri Indra Das v. State of Assam, 2011 (3) ACR 2530 (SC).
61
305th Report of the Law Commission of United Kingdom, Assisting and Encouraging Crime/ Participating in
Crime, Para 2.49, 2007.
62
SMITH AND HOGAN, SMITH AND HOGAN'S CRIMINAL LAW (Karl Laird & David Ormerod eds., Oxford
University Press, UK, 2015).
63
R v. Bainbridge, [1960] 1 QB 129.
64
(1978) 3 All ER 1140.
65
(1994) 3 SCC 569.
The most important is the intention or purpose behind the defiance or rising
against the government. As said by foster, “the true criterion is quo animo did the parties
assemble?” In other words the intention and purpose of the warlike operations directed against
the governmental machinery is an important criterion.66

In the instant case, the appellant has been alleged of waging war against the government which
is futile in nature. The Counsel humbly submits that the past conduct of the appellant clearly
depicts his intention and interest in the tribal rights. As discussed earlier, the abettor’s intention
and knowledge is to be proved.. It is reasonable to attribute a mental element (such as
knowledge that the harboured person was involved in a terrorist act) as indispensable to make
it a penal act. 67Also, all his life, he propagated the idea of socialism and awareness of tribal
rights and staunchly criticized the government policy which was against the tribal community’s
welfare. He never intended to insurrect a war against the government. He never used violence
to fight for tribal rights.

2. THE CHARGES PRESSED AGAINST APPELLANT UNDER UAPA, 1967 AND

PMLA, 2002 ARE NOT JUSTIFIED.

The Counsel on the behalf of appellant most humbly submits that the charges pressed against
him under UAPA, 1967 and PMLA, 2002 is not true. There is no substantial evidence to prove
beyond reasonable doubt of the appellant’s guilt.

2.1 Unlawful Activities Prevention Act

Unlawful Activities Prevention Act, 1967 is strict liability legislation with immense power
vested in it to safeguard the national security. The mere teaching of communist theory,
including the teaching of the moral propriety or even moral necessity for a resort to force and
violence, is not the same as preparing a group for violent action and steeling it to such action.68
There must be some substantial direct or circumstantial evidence of a call to violence now or
in the future which is both sufficiently strong and sufficiently pervasive to lend colour to the
otherwise ambiguous theoretical material regarding communist party teaching.69

66
Supra Note 49.
67
Kalpnath Rai v. State, (1997) 8 SCC 732.
68
P.Nedumaran v. State of Tamil Nadu and others, 1999 (1) LW (Crl.) 7; C.J.Rajan v. Deputy Superintendent of
Police reported in (2008) 3 MLJ 926.
69
Mr. Justice Harlan of the U.S. Supreme Court observed in Noto v. U.S, 367 US 290 (297, 298).
 2.1.1 Knowledge of the terrorist act and funding

Section 17 of Unlawful Activities Prevention Act, 1967 (UAPA) punishes for raising fund
for terrorist act. The element of knowledge is to be stressed here. A person is liable under this
act only when he/she knows that such funding is used for a terrorist act. Also Section 18 of
UAPA punishes for conspiracy.

The concept of conspiracy has already been discussed with waging of war. Section 40 of UAPA
considers raising of fund for terrorist organization as an offense. The Counsel humbly contends
that all these above provisions don’t subsist as the appellant had no knowledge of the funding
being used for terrorist organization.

Section 1570 defines a terrorist act. The appellant never had an intention to threaten or likely to
threaten the unity, integrity, security or sovereignty of India or intend to strike terror in the
people or any Section of people in India or foreign countries. There was no overt act as to
Section 15 (a) (b) (c) of the Act71.

2.1.2 Being a part of association does not amount to sharing of unlawful purpose
In the case of Elfbrandt v. Russell,72 the court rejected the doctrine of ‘guilt by association’.

“Those who join an organization but do not share its unlawful purposes and
who do not participate in its unlawful activities surely pose no threat. This act
threatens the cherished freedom of association protected by the first
amendment, made applicable to the states by the fourteenth amendment. A law
which applies to membership without the ‘specific intent’ to further the illegal
aims of the organization infringes unnecessarily on protected freedoms. It rests
on the doctrine of ‘guilt by association’ which has no place here.”73

The decision relied on its earlier judgments in Schneiderman v. U.S.74 and Schware v. Board
Of Bar Examiners 75,the judgment in Elfbrandt’s case(supra) also referred to the decision of
the U.S. supreme court in Scales v. U.S. 76 which made a distinction between an active and a

70
Unlawful Activities Prevention Act, 1967. [Whoever does any act with intent to threaten or likely to threaten
the unity, integrity, security or sovereignty of India or with intent to strike terror or likely to strike terror in the
people or any section of the people in India or in any foreign country]
71
Id.
72
Elfbrandt v. Russell 384 US 17(1966) (As Discussed in Indra Das v. State of Assam, (2011) 3 SCC 380)
73
State of Kerala v. Raneef , (2011) 1 SCC 784.
74
Schneiderman v. U.S. 320 US 118 (136). (As Discussed in Indra Das v. State of Assam, (2011) 3 SCC 380)
75
Schware v. Board Of Bar Examiners 353 US 232(246). (As Discussed in Indra Das v. State of Assam, (2011)
3 SCC 380).
76
Scales v. U.S. 367 US 203 (229). (As Discussed in Indra Das v. State of Assam, (2011) 3 SCC 380).
passive member of an organization. In Scales case, Mr. Justice Harlan of the U.S. Supreme
Court observed:

“the clause (in the McCarran act, 1950) does not make criminal all
associations with an organization which has been shown to engage in illegal
advocacy. There must be clear proof that a defendant ‘specifically intends to
accomplish the aims of the organization by resort to violence’.77

Mere membership of a banned organization cannot incriminate a person unless he is proved to

have resorted to acts of violence or incited people to imminent violence, or does an act intended
to create disorder or disturbance of public peace by resort to imminent violence. In Arup
Bhuyan v. State of Assam78, even assuming that the appellant was a member of ULFA which
is a banned organization, there is no evidence to show that he did acts of the nature above
mentioned. Thus, even if he was a member of ULFA, it has not been proved that he was an
active member and not merely a passive member.79 Had there been no Constitution having
fundamental rights in it then of course a plain and literal meaning could be given to Section
3(5) of TADA or Section 10 of the Unlawful Activities (Prevention) Act, 1967. But since there
is a Constitution in our country providing for democracy and fundamental rights we cannot
give these statutory provisions such a meaning as that would make them unconstitutional. In
the instant case, the Organization was not even banned by the Central Government under
Section 3 of the Unlawful Activities Prevention Act, 1967. Without being declared as an
unlawful organization, such penal provisions being imposed on the appellant is an arbitrary
move from the respondent side.

The state could not punish a person making a lawful speech simply because the speech was
sponsored by a subversive organization. The Constitution is the highest law of the land and no
statute can violate it. If there is a statute which appears to violate it we can either declare it
unconstitutional or we can read it down to make it Constitutional. The first attempt of the court
should be try to sustain the validity of the statute by reading it down. This aspect has been
discussed in great detail by this court.80

In State Of Maharashtra and Ors. v. Bhaurao Punjabrao Gawande81, this court observed:

77
Brandenburg v. Ohio, 395 US 444(1969) reversed in Whitney v. California, 274 US 357 (1927) .
78
Arup Bhuyan v. State of Assam (2011) 3 SCC 377.
79
Sri Indra Das v. State of Assam, 2011 (3) ACR 2530 (SC).
80
De Jonge v. Oregon, 299 US 353 (1937).
81
State of Maharashtra and Ors. v. Bhaurao Punjabrao Gawande (2008) 3 SCC 613 (¶ 23).
 “Personal liberty is a precious right. So did the founding fathers believe
because, while their first object was to give unto the people a Constitution
whereby a government was established, their second object, equally important,
was to protect the people against the government. That is why, while conferring
extensive powers on the government like the power to declare an emergency,
the power to suspend the enforcement of fundamental rights or the power to
issue ordinances, they assured to the people a bill of rights by Part III of the
Constitution, protecting against executive and legislative despotism those
human rights which they regarded as fundamental. The imperative necessity to
protect these rights is a lesson taught by all history and all human experience.
Our Constitution makers had lived through bitter years and seen an alien
government trample upon human rights which the country had fought hard to
preserve..82

2.2 Prevention of Money Laundering

Section 383 defines money laundering. The general principle is that a person so involved must
be found rendering financial assistance to the accused of terrorist/disruptive activities, or could
be reasonably suspected in indulging in such activities.84 Section 24 of the Act puts the burden
of proof on the accused. Such burden can be discharged by showing a preponderance of
probabilities.85

As per section 105 of Indian Evidence Act, Burden of proving that case of accused comes
within exceptions.—When a person is accused of any offence, the burden of proving the
existence of circumstances bringing the case within any of the General Exceptions in the Indian
Penal Code, (45 of 1860), or within any special exception or proviso contained in any other
part of the same Code, or in any law defining the offence, is upon him, and the Court shall
presume the absence of such circumstances.

In Babulal v. State86, it was discussed that onus of establishing an exception shifts to the
accused when he pleads the exception, this onus can be discharged either by affirmatively
establishing the plea taken by an accused person or by eliciting such circumstances which

82
A.K. Roy v. Union of India, (1982) 1 SCC 271; Attorney General for India v. Amratlal Prajivandas, 1994) 5
SCC 54.
83
Prevention of Money Laundering Act, 2002.
84
Yakub Abdul Razak Memon v. State of Maharashtra, 2013 SCC OnLine SC 257.
85
Bhupendrasingh A Chudasma v. State of Gujarat, (1998) 2 SCC 603.
86
Babulal v. State, AIR 1960 All 223, See also State v. Kolis Hira, AIR 1961 Guj 8; Lakshmanan v. Lakshmanan,
AIR 1964 MAD 418; Nishikanta v. Calcutta Corporation, AIR 1953 Cal 401; Raghbir Singh v. State of Haryana,
AIR 2009 SC 1223, 1223-26 (para 7) ; Arun v. State of Mahrashtra, 2009 CrLJ 2065, 2068- 69(para6).
would create a doubt in the mind of the court that the reasonable possibility of the accused
acting within the protection of the exception pleaded is not eliminated.
Whereas in Mohd. Ramzani v. State of Delhi87, it was discussed by the Hon’ble Supreme Court
that the onus which rest on the accused under Section 105 is not as onerus as unshifting burden
which lies on the prosecution to establish every ingredient of the offence with which the
accused is charged beyond reasonable doubt.
In Bharat Barrel and Drum Manufacturing Co. v. Amin Chand Pyarelal88 it was held that
“Defendant by showing preponderance of probabilities that such consideration
as stated in the pronote, or in the suit notice or in the plaint does not exist and
once the presumption is so rebutted, the said presumption 'disappears'. For the
purpose of rebutting the initial evidential burden, the Defendant can rely on
direct evidence or circumstantial evidence or on presumptions of law or fact.
Once such convincing rebuttal evidence is adduced and accepted by the Court,
having regard to all the circumstances of the case and the preponderance of
probabilities, the evidential burden shifts back to the Plaintiff who has also the
legal burden. For the purpose of rebutting the initial evidential burden, the
defendant can rely on direct evidence or circumstantial evidence or on
presumptions of law or fact. Once such convincing rebuttal evidence is adduced
and accepted by the Court, having regard to all the circumstances of the case
and the preponderance of probabilities, the evidential burden shifts back to the
plaintiff who has also the legal burden.”

In the instant case, even if there is a single possibility that the Appellant is guilty and in such a
case if the Appellant proves any facet stating that he is not guilty under the alleged act, then
the burden of proof automatically shift towards the Prosecution. Here, the Appellant has proved
beyond reasonable doubt that he is not connected to any of the events for which he has been
charged by the Province. In such a case, the burden of proof has shifted on the Province to
prove the liability of Rampon.

Similarly in Kartar Singh v. State of Punjab89 :

“Therefore, in order to remove the anomaly in the vague and imprecise definition
of the word, ‘abet’, we for the abovementioned reasons, are of the view that the
person who is indicted of communicating or associating with any

87
Mohd. Ramzani v. State of Delhi, AIR 1980 SC 1341; Yogendra Moraji v. State of Gujrat, AIR 1980 SC 60;
Pratap V. State of U.P, AIR 1976 SC 966; Rafiq v. State of Maharashtra, AIR 1979 SC 1179 ; Omkar Nath
Singh v. State of U.P, AIR 1974 SC 1550; State of M.P v. Ahmadulla, AIR 1961 SC 998.
88
Bharat Barrel and Drum Manufacturing Co. v. Amin Chand Pyarelal (1999) 3 SCC 35.
89
(1994) 3 SCC 569.
 person or class of persons who is engaged in assisting in any manner terrorists
or disruptionists should be shown to have actual knowledge or to have reason
to believe that the person or class of persons with whom he is charged to have
communicated or associated is engaged in assisting in any manner the terrorists
and disruptionists.”

“To encapsulate, for the discussion above, the expressions ‘communication’

and ‘association’ deployed in the definition should be qualified so as to save the
definition, in the sense that ‘actual knowledge or reason to believe’ on the part
of a person to be roped in with the aid of that definition should be read into it
instead of reading it down and clause (i) of the definition 2(1)(a) should be read
as meaning ‘the communication or association with any person or class of
persons with the actual knowledge or having reason to believe that such person
or class of persons is engaged in assisting in any manner terrorists or
disruptionists’ so that the object and purpose of that clause may not otherwise
be defeated and frustrated.”

Mens Rea is an essential ingredient of a criminal offence. Doubtless a statute may exclude the
element of mens rea, but it is a sound rule of construction adopted in England and also accepted
in India to construe a statutory provision creating an offence in conformity with the common
law rather than against it unless the statute expressly or by necessary implication excluded mens
rea. The mere fact that the object of the statute is to promote welfare activities or to eradicate
a grave social evil is by itself not decisive of the question whether the element of guilty mind
is excluded from the ingredients of an offence.90

The funds received from some blacklisted organization declared by the western countries, were
not blacklisted in India. Even if the capital received was black money; the appellant had no
knowledge of it. Also, the organization was blacklisted as a diplomatic move.91 Therefore, the
offence of money laundering does not stand firm.

3. THE DUE PROCESS OF LAW HAS NOT BEEN COMPLIED WITH.

Article 21 of the Constitution of India guarantees protection of life and personal liberty. It says,
“No person shall be deprived of his life or personal liberty except according to procedure
established by law”. The Apex Court has held, ‘Procedure established by law’ within the
meaning of Article 21 must 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 21

90
Nathulal v. State of M.P., AIR 1966 SC 43; Srinivas Mall Bairoliya v. King-Emperor, AIR 1947 PC 135;
Ravula Hariprasada Rao v. State, AIR 1951 SC 204.
91
Page 1, ¶7, Clarifications, Jamia Clinical Moot Court 2020.
would not be satisfied.92 Due Process envisages a reasonable procedure. The person affected
should have fair right of hearing which include 4 elements: (1) Notice, (2) Opportunity to be
heard, (3) Impartial Tribunal, (4) Orderly procedure93.
The due process of law has not been followed in the instant case. The Supreme Court94 says
that, a clear reasoning and analysis are the basic requirements in a judicial decision. The judges’
decision should be free of any extraneous influences, inducement, pressures, threats or
interference, direct or indirect, from any quarter or for any reason. The High Court as well as
Sessions Court in the instant case has failed miserably in this regard because no procedure was
followed to reach an unbiased conclusion.

3.1 Fundamental right provided under Article 21 has been infringed

The Supreme Court has asserted that Art 21 is the heart of the fundamental rights.95The Court
is thus concerned with the procedure as laid down in the statute. The Courts insisted time and
again that while depriving a person of his personal liberty, that procedure established by law
must be strictly complied with and must not be departed from to the disadvantage of the person
affected.96 The procedure contemplated by Art. 21 must answer the test of reasonableness in
order to conform to Art. 14 for, in words of Bhagwati J,
“The principle of reasonableness which legally as well as philosophically
is an essential element of equality or non-arbitrariness pervades Art14 like
a brooding omnipresence.”97 According to Bhagwati J, Art. 21 “embodies
a Constitutional value of supreme importance in a democratic society.”98
Iyer J has characterised Art. 21 as the “procedural Magna Carta protective
of life and liberty.”99

Further, Maneka Gandhi v. Union of India100 enumerates due process of law and Art. 21 has
become the source of many substantive rights and procedural safe guards to the people.

92
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
93
MAHABIR PRASAD JAIN, INDIAN CONSTITUTIONAL LAW, 1180 (LexisNexis Butterworths Wadhwa, Nagpur,
2010).
94
- Per J. K. S. Radhakrishnan ,“Duty of the judge is to decide cases which come before him in accordance with
the Constitution and laws, following the settled judicial precedents. We may point out that clear reasoning and
analysis are the basic requirements in a judicial decision. Judicial decision is being perceived by the parties and
by the society in general as being the result of a correct application of the legal rules, proper evaluation of facts
based on settled judicial precedents and judge shall not do anything which will undermine the faith of the people.”
OMA@ Om Prakash & Anr. v. State of Tamil Nadu, AIR 2013 SC 825.
95
Unni Krishanan v. State of Andhra Pradesh, AIR 1993 SC 2178.
96
Naranjan Singh v. State of Punjab, AIR 1952 SC106.
97
Per Bhagwati J., Maneka Gandhi v. Union of India, (1978) 1 SCC 248 Per Bhagwati J.
98
Francis Coralie v. Union Territory of Delhi, AIR 1981 SC 746.
99
P.S.R Sadhanantham v. Arunachalam, AIR 1980 SC 856.
100
Maneka Gandhi v. Union of India (1978) 1 SCC 248.
Any law interfering with the personal liberty of a person must satisfy a triple test;
1. It must prescribe a procedure.
2. The procedure must withstand the test of one or more of the Fundamental Rights
conferred u/a 19 which may be applicable in a given situation, it must also be liable to
be tested with reference to Art 14.101 A procedure which is unreasonable cannot be in
consonance with Art. 21.102 Such right extends not only to the actual proceedings in
court but also includes within its sweep the preceding police investigation as well.103
3.1.1 Fair Trial has not been accorded on the accused

Conducting a fair trial for those who are accused of criminal offenses is the cornerstone of
democracy. Conducting fair trial is beneficial for both the accused as well as the society. A
conviction resulting from an unfair trial is contrary to our concept of justice.104 Right to fair
trial in a criminal prosecution is enshrined in Art. 21. For example, Section 142 of Evidence
Act does not give power to prosecution to put leading question to the accused. To do so,
infringes the right of the accused to have a fair trial enshrined in Art. 21. This is not a curable
irregularity.105

In the present case, a detailed enquiry revealed the involvement of True-Socialism and the
funds received from True Socialism. Further enquiry was not conducted as the appellant was
in Chindesh for past two months to deliver lectures on socialism. Therefore, the procedural
lapses existed, infringing his right to life and personal liberty. Without following the procedure,
the Sessions Court and High Court imposed life imprisonment and death penalty, respectively,
which is beyond the scope of a fair trial106.

Also, for the offences under Money Laundering and Unlawful Activities (Prevention) Act,
1967 there is a need to establish Special Court to address the issue with urgency and with due
process, which was required under Section 43 and 44107. It was not taken into consideration so
that a fair chance could be given for a fair trial

101
District Registrar and Collector v. Canara Bank, (2005) 1 SCC 496.
102
Supdt & Remembrancer, Legal affairs, WB v. S Bhowmick, AIR 1981 SC 917,923.
103
Vakil Prasad v. State of Bihar, AIR 2009 SC 1822.
104
State of Punjab v. Baldev Singh, AIR 1999 SC 2378.
105
Varkey Joseph v. State of Kerala, AIR 1993 SC 1892.
106
Hasanbhai Valibhai Qureshi v. State of Gujarat, (2004) 5 SCC 347.
107
Prevention of Money Laundering Act, 2002.
 3.1.2 Right to be heard has not been given to the accused.

As per Section-43E of the Unlawful Activities Prevention Act, 1967, the burden of proof is
upon the accused. The session’s court has sentenced him without giving him a chance to show
cause and was not given a chance under S.377 (1) of Code of Criminal Procedure, 1973108
which empowers the State government against the sentence passed by Sessions Court due to
inadequacy and S. 377(3) of the same says that such enhancement should only be after giving
to the accused a reasonable opportunity of showing cause against such enhancement and while
showing cause, the accused may plead for his acquittal or for the reduction of the sentence. In
respect of enhancement of sentence in revision the enhancement can be made only if the Court
is satisfied that the sentence imposed by the trial Court is unduly lenient, or that in passing the
order of sentence, the trial court has manifestly failed to consider the relevant facts.109
Similarly, in Ram Narain v. State of U.P110 it was laid down that sentence can be enhanced if
it was so manifestly inadequate as to have resulted in failure of justice. The right to be heard is
of the essence but hearing does not mean more than fair opportunity to present one’s point on
a dispute, followed by a fair consideration thereof by fair minded judges. Let us not romanticize
this process nor stretch it to snap it. Presentation can be written or oral, depending on the justice
of the situation.111

In the case of Ashubha Bharatsinh Gohil v. State of Gujarat112, the High Court should not
have enhanced the sentence from life imprisonment to death because for exercising its
discretion in choosing the sentence the trial court had given elaborate reasons which it cannot
be said no judicial mind could advance. Only because the High Court looked at those reasons
differently, in our opinion, it did not justify the enhancement of sentence to death sentence

If we skim through the facts of the instant case, we could decipher that the appellant has not
been given substantial opportunity to defend his case, therefore infringing his Right to be heard.
Here, the Province filed an appeal, to which the HC confirmed charges and enhanced

108
§377, Code of Criminal Procedure, 1973 – [Save as otherwise provided in sub- section (2), the State
Government may, in any case of conviction on a trial held by any Court other than a High Court, direct the
Public Prosecutor to present an appeal to the High Court against the sentence on the ground of its inadequacy.]
109
Alamgir v. State of Bihar, AIR 1959 SC 436.
110
Ram Narain v. State of U.P AIR 1971 SC 757.
111
Mohd. Arif v. The Registrar, Supreme Court of India, (2014) 9 SCC 737.
112
Ashubha Bharatsinh Gohil v. State of Gujarat (1994) 4 SCC 353.
the punishment to death.113 The inability of the HC to find procedural lapses in the trial ipso
facto provides for an inference that there was miscarriage of justice. The awarding of death
sentence without any reasonable opportunity to defend is bad in the eyes of law.

3.2 Charges Pressed Against Accused Has Not Been Prove Beyond Reasonable Doubt

In the case of OMA@ Om Prakash & Anr. v. State of Tamil Nadu, the Supreme Court of India
stated that:
“Judges or academicians opinions, predilection, fondness, inclination,
proclivity on any subject, however eminent they are, shall not influence a
decision making process, especially when judges are called upon to decide a
criminal case which rests only on the evidence adduced by the prosecution as
well as by the defence and guided by settled judicial precedents.114

This statement enlightens us on the requirement of proof beyond reasonable doubt115 which
could be done only on the basis of the evidence adduced. The subject matter of evidence was
not stressed much as only one detailed inquiry was conducted and further inquiry was not
conducted as the appellant was in Chindesh.116 The fact sheet is silent on the evidence produced
and the analogy they drew for proving the involvement of the appellant in the said case matter.

An accused has a profound right not to be convicted of an offence which is not established by
the evidential standard of proof “beyond reasonable doubt”. This Court in Krishnan and Anr.
v. State117, held that the doubts would be called reasonable if they are free from a zest for
abstract speculation. Law cannot afford any favourite other than truth and to constitute
reasonable doubt, it must be free from an overemotional response. Doubts must be actual and
substantial doubts as to the guilt of the accused persons arising from the evidence, or from the
lack of it, as opposed to mere vague apprehensions. A reasonable doubt is not an imaginary,
trivial or a merely possible doubt, but a fair doubt based upon reason and common sense. It
must grow out of the evidence in the case. 118

In our criminal justice system, for recording guilt of the accused, it is not necessary that the
prosecution should prove the case with absolute or mathematical certainty, but only beyond

113
Page 6, ¶17 Moot proposition, Jamia Clinical Moot Court 2020.
114
OMA@ Om Prakash & Anr. v. State of Tamil Nadu AIR 2013 SC825.
115
Commonwealth v. John W. Webster, 5 Cush. 295, 320 (1850) -.”
116
Page 6, ¶16 Moot proposition, Jamia Clinical Moot Court 2020.
117
Krishnan and Anr. v. State (2003) 7 SCC 56.
118
Ramakant Rai v. Madan Rai and Ors., (2002) 12 SCC 395.
reasonable doubt. Criminal Courts, while examining whether any doubt is beyond reasonable
doubt, may carry in their mind, some “residual doubt”, even though the Courts are convinced
of the accused persons’ guilt beyond reasonable doubt.119

3.3 Death Sentencing Policy given by the Court has not been complied with.

The court emphasises that the death penalty is an exception rather than the rule and ought to be
imposed only in the ‘gravest of cases of extreme culpability’ and ‘rarest of rare’ cases when
the alternative option is unquestionably foreclosed.120 Death penalty is to be imposed only
when “ life imprisonment appears to be altogether inadequate punishment having regard to
relevant circumstances of the crime and provided, only provided, the option to impose sentence
of imprisonment for life cannot be conscientiously exercised121 having regard to the nature and
circumstances of the crime and all relevant circumstances.”

A decision of this court of recent times on the question of sentence is reported in Ram Naresh
and Others v. State of Chhattisgarh122. The principles laid down therein have been
summarized “while determining the questions relatable to sentencing policy, the court has to
follow certain principles and those principles are the loadstar besides the above considerations
in imposition or otherwise of the death sentence.

The court has to apply the test to determine if the instant case was the ‘rarest of rare’ case for
imposition of a death sentence. It is very evident that Life Imprisonment is the rule and death
sentence is an exception. The method and manner of the act alleged should be as such that the
gravity of the offence can be seen and observed easily. In the instant case, without adducing
any direct evidence, the honourable High Court as well as the Supreme Court relied upon the
circumstantial evidence and on the same note implicated the appellant giving such a sentence
which is being given in the ‘rarest of the rare case’.

119
Ramakant Rai v. Madan Rai and Ors, (2002) 12 SCC 395 “
120
Bachan Singh v. State of Punjab, AIR 1980 SC 898; Machi Singh v. State of Punjab, AIR 1983 SC 947.
121 Id.
122
Ram Naresh and Others v. State of Chhattisgarh (2012) 4 SCC 257.
-Prayer - -Appellant-

PRAYER

IN THE LIGHT OF THE ARGUMENTS ADVANCED AND AUTHORITIES CITED, THE

APPELLANT HUMBLY PLEADS BEFORE THE HON’BLE COURT TO:

1. SET ASIDE THE DECISION OF THE SESSIONS COURT AND THE

HIGH COURT.

2. TO ACQUIT THE APPELLANT FROM ALL THE CHARGES

IMPOSED ON HIM.

ANY OTHER ORDER AS IT DEEMS FIT IN THE INTEREST OF EQUITY,

JUSTICE AND GOOD CONSCIENCE.

FOR THIS ACT OF KINDNESS, THE APPELLANT FACTION SHALL BE

DUTY BOUND FOREVER.

SD/-

(COUNSEL FOR THE APPELLANT)

-MEMORANDUM for THE APPELLANT-

XXI
 BEFORE THE SUPREME COURT OF INDIA

Writ Petition filed under Article

32 of the Constitution of Inca

W.P No.: ---/2016

JAMIA CLINICAL MOOT COURT, 2020

MARIA AND ORS Petitioners

vs.

UNION OF INDIA AND ORS. Respondents

MEMORIAL FILED ON BEHALF OF THE PETITIONERS

Most Respectfully Submitted to the Hon’ble

Judges of the Supreme Court of India

COUNSEL APPEARING ON BEHALF OF PETITIONERS

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
T A B LE OF C O N TE N T S - -Page i of x

T ABLE OF CONTENTS

INDEX OF A U T H O R I T I E S...................................................................................................................................ii
ST A T E M E N T OF J U R I S D I C T I O N ................................................................................................................ vi
ST A T E M E N T OF F A C T S ................................................................................................................................... vii
ST A T E M E N T OF I S S U E S ................................................................................................................................. viii
SUMMARY OF A R G U M E N T S .......................................................................................................................... ix
W R I T T E N S U B M I S S I O N S .................................................................................................................................... 1
1. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT,
2015 IS IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION? ................................................... 1
1.1. THAT RETROSPECTIVE APPLICATION OF THE ACT IS IN VIOLATION OF ARTICLE 14 OF
THE CONSTITUTION................................................................................................................................................... 2

1.2. THAT THE EXCLUSION OF FOREIGN NATIONALS FROM AVAILING THE BENEFIT OF
SURROGACY IS IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION ............................................... 2

1.3. THAT THE EXCLUSION OF SINGLE AND UNMARRIED WOMEN FROM BEING
COMMISSIONING PARENTS AND OFFERING SERVICES OF SURROGACY IS IN VIOLATION OF
ARTICLE 14 OF THE CONSTITUTION .................................................................................................................. 5
2. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT,
2015 IS IN VIOLATION OF ARTICLE 19 OF THE CONSTITUTION? ................................................... 7
2.1. THAT THE DOCTORS, CLINICS AND SINGLE WOMEN HAVE A RIGHT TO PRACTICE
SURROGACY AS A TRADE OR PROFESSION UNDER ARTICLE 19(1)(G) OF THE CONSTITUTION . 8

2.2. THAT THE RESTRICTIONS IMPOSED BY THE ACT ARE NOT SAVED BY ARTICLE 19(6) ... 9
3. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT,
2015 IS IN VIOLATION OF ARTICLE 21OF THE CONSTITUTION? .................................................. 10
3.1. THAT THE ACT CURTAILS THE RIGHT TO PRIVACY GUARANTEED BY ARTICLE 21 OF
THE CONSTITUTION................................................................................................................................................ 11

3.2. THAT THE ACT IS IN VIOLATION OF THE RIGHT TO LIVELIHOOD UNDER ARTICLE 21.13
3.3. THAT THE ACT VIOLATES THE RIGHT TO HEALTH UNDER ARTICLE 21. ..................... 14
P R A Y E R ........................................................................................................................................................................... x

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
IN D E X OF A U TH O R I T IE S - -Page ii of x

I NDEX OF A UTHORITIES

Cases
ABC v. State (NCT of Delhi), AIR 2015 SC 2569 .........................................................................................................6
Additional Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr., [1990] Supp 3 SCR
583. ............................................................................................................................................................................3
Anuj Garg and Ors.v. Hotel Association of India and Ors., (2008) 3 SCC 1.............................................................. 11
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1 ......................................................................................... 14
B.K. Parthasarathi v. State of AP, 2000 (1) ALD 199 ................................................................................................ 12
Baby Manji Yamada v. Union of India and Anr., (2008) 13 SCC 518 ..........................................................................9
C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors., AIR 1992 SC 573 ................................................... 16
Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries AIR 1993 SC 1601 ...........................................2
Gobind v. State of Madhya Pradesh and Anr., 1975 CriLJ 1111 ................................................................................ 12
Holiness Kesavananda Bharati Sripadagalvaru and Ors.v. State of Kerala and Anr.,(1973) 4 SCC 225 ....................8
I.C. Golaknath v. State of Punjab, [1967] 2 SCR 762 ................................................................................................. 14
In Re: Adoption of Payal @ Sharinee Vinay Pathak and his wife Sonika Sahay @ Pathak, 2010 (1) Bom CR 434 ...6
In re: The Special Courts Bill, 1978 (1979) 1 SCC 380 ................................................................................................1
Indra Sarma v. V.K.V. Sarma, AIR 2014 SC 309 .........................................................................................................7
Inspector (Mahila) Ravina v. UOI and Ors., W.P.(C) 4525/2014 ................................................................................8
Israel Military Industries Ltd. v. Union Of India & Anr ...............................................................................................3
Jan Balaz v. Anand Municipality, AIR 2010 Guj 21 .....................................................................................................3
Kharak Singh v. State of U.P. and Ors., AIR 1963 SC 1295 ...................................................................................... 13
Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469 .........................................................................................5
M.J. Sivani and Ors. v. State of Karnataka and Ors.(1995) 6 SCC 289 .......................................................................3
M/S Sethi Auto Service Station v. Delhi Development Authority & Ors. AIR 2009 SC 904 .........................................2
Madras City Wine Merchants Association v. State of Tamil Nadu (1994) 5 SCC 509..................................................2
Maneka Gandhi v. Union of India, (1978) 1 SCC 248 ................................................................................................ 14
Manushi Sangathan, Delhi v. Government of Delhi and Ors., 168 (2010) DLT 168 ...................................................9
Minerva Mills Ltd. and Ors.v. Union of India and Ors., (1980) 3 SCC 625 .................................................................8
Mithilesh Kumari v. Prem Behari Khare, (1982) 2 SCC 95..........................................................................................6
National Buildings Construction Corporation v. S. Raghunathan & Ors., AIR 1998 SC 2779....................................2
Navjyoti Coop. Group Housing Society v. Union of India (1992) 4 SCC 477 ..............................................................2
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545 ............................................................................ 14
Paschim Banga Khet Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426.................................................. 16
Pathumma v. State of Kerala, [1978] 2 SCR 537 ....................................................................................................... 14
Pt. Parmanand Katara v. Union of India (1989) 4 SCC 286 ...................................................................................... 15
R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632 ............................................................................................ 12

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
IN D E X OF A U TH O R I T IE S - -Page iii of x

Raghunathrao Ganpatrao v. Union of India, AIR 1993 SC 1267 .................................................................................1

Rajasthan Pradesh V.S. Sardarshahar and Anr. v. Union of India (UOI) and Ors., AIR 2010 SC 2221 .................. 10
Rama Pandey v. Union of India and Ors., 221 (2015) DLT 756 ..................................................................................6
S. Amudha v. Chairman, Neyveli Lignite Corporation, (1991) 1 MLJ 137 ................................................................. 13
S.P.S. Balasubramanyam v. Suruttayan Alias Andali Padayachi and Ors., AIR 1992 SC 756 ....................................7
Saghir Ahmed v. State of U.P, (1955) 1 SCR 707(717).................................................................................................9
Samira Kohli v. Dr. Prabha Manchanda and Anr., AIR 2008 SC 1385 ..................................................................... 16
Smt. Selvi v. State of Karnataka, AIR 2010 SC 1974 .................................................................................................. 13
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors., AIR 2006 SC 212...............................................3
State of Maharashtra and Ors.v. Indian Hotel and Restaurants Association and Ors., AIR 2013 SC 2582 .............. 11
Suchita Srivastava and Anr. v. Chandigarh Administration, AIR 2010 SC 235 ......................................................... 12
Svetlana Kazankina and Ors .v. Union of India and Ors,. 225 (2015) DLT 613 ..........................................................7
T. Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356 .............................................................................................. 12
Uday Gupta v. Aysha and Anr,. 2014 (7) SCJ 209 ........................................................................................................6
Union of India &Ors. v. Hindustan Development Corporation & Ors. AIR 1994 SC 988 ...........................................2
Union of India and Anr. v. Jan Balaz and Ors., 2015 (4) RCR (Civil) 881 ............................................................ 9, 10
Union of India and Anr. v. Tulsiram Patel and Ors., AIR 1985 SC 1416.....................................................................4
Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors., AIR 1993 SC 2178 .......................................... 14
Foreign Judgments
Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416 ............................................................................6
Canterbury v. Spence, 1972 [464] Federal Reporter 2d. 772 ...................................................................................... 16
Council of Civil Service Unions & Ors. v. Minister for the Civil Service, [1983] UKHL 6 ..........................................2
Durban in MIA v. State Information Technology Agency (Pty) Ltd., (D312/2012) [2015] ZALCD20 .........................6
Eisenstadt v. Baird, 405 U.S. 38 ................................................................................................................................. 12
Griswold v. Connecticut, 381 U.S. 479, 484 (1965).................................................................................................... 12
K (Minors) (Foreign Surrogacy), EQHC (Family Division), Case No: FD09P02848 ..................................................3
Labassee v. France, no.65941/11, ECHR .....................................................................................................................3
Lifchez v. Hartigan, 735 F. Supp. 1361 (1990) ........................................................................................................... 13
Mennesson v. France, no.65192/11, ECHR (2014).......................................................................................................3
Meyer v. Nebraska, (1923) 67 L Ed 1042 ................................................................................................................... 13
Paradiso and Campanelli v. Italy, no.25358/12, European Council Human Rights .....................................................3
Planned Parenthood of Central Missouri. v. Danforth , 428 U.S. 52 (1976 .................................................................8
R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions, [2003] 2 AC
295 .............................................................................................................................................................................7
Roe v. Wade, 410 U.S. 113 (1973) .............................................................................................................................. 13
Skinner v. Oklahoma, (1942) 316 US 535 ................................................................................................................... 12

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
IN D E X OF A U TH O R I T IE S - -Page iv of x

Books
1. GITA ARAVAMUDHAN, BABY MAKERS: THE STORY OF INDIAN SURROGACY (2014)
2. LEGAL AND ETHICAL ISSUES IN HUMAN REPRODUCTION,THE INTERNATIONAL LIBRARY OF
MEDICINE, ETHICS AND LAW 24 (Bonnie Steinbock ed., 1st Edn., 2002)
3. E. ANDERSON, VALUE IN ETHICS AND ECONOMICS (1995)
Journals
1. John A. Robertson, The Right To Procreate and In Utero Fetal Therapy, 3 JOURNAL OF
LEGAL MEDICINE 44 (1982).
2. Anil Malhotra and Ranjit Malhotra, All Aboard For the Fertility Express, 38
COMMONWEALTH LAW BULLETIN 1 (2012).
3. Anu, Pawan Kumar, Deep Inder, Nandini Sharma, Surrogacy and Women’s Right to Health
in India: Issues and Perspective, 57 INDIAN JOURNAL OF PUBLIC HEALTH 2 (2013).
Guidelines and Reports
1. Notification No. V.25011/119/2015-HR, Ministry of Health and Family Welfare,
Government of India (4th November 2015).
2. Citizenship, Parentage, Guardianship And Travel Document Issues In Relation To
Children Born As A Result Of Surrogacy Arrangements Entered Into Outside The State,
The Minister for Justice, Equality and Defence (February 21, 2012).
3. Illegal trade in human organs, Letter by the Chairperson of National Human Rights
Commission to the Prime Minister, January 29, 2004.
4. Guidelines Governing Adoption of Children, Ministry of Women and Child Development,
New Delhi, July 17, 2015.
5. Report of the International Conference on Population and Development, Principle 1,
A/CONF.171/13 (18 October 1994).
6. Report of the Law Commission of India (2009).
7. National Guidelines for Accreditation, Supervision, Regulation of ART Clinics in India,
Indian Council of Medical Research (2005).
International instruments
1. UN General Assembly, Universal Declaration of Human Rights, Art. 16(1), 10 December
1948, 217 A (III)

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
IN D E X OF A U TH O R I T IE S - -Page v of x

2. UN General Assembly, International Covenant on Civil and Political Rights, Art. 23(2),
16 December 1966, United Nations Treaty Series, vol. 999, p. 171
3. Committee on Economic Social and Cultural Rights, General Comment No. 14 (2000);
Paragraph 41, UN General Assembly, International Covenant on Economic, Social and
Cultural Rights, 16 December 1966, United Nations Treaty Series, vol. 993, p. 3
4. Factsheet No. 31, UN Commission on Human Rights (2003)
5. Principle 24, Yogyakarta Principles - Principles on the Application of International Human
Rights Law in Relation to Sexual Orientation and Gender Identity, International
Commission of Jurists, (2007)
6. Revised Glossary of ART Terminology, International Committee for Monitoring Assisted
Reproductive Technology (ICMART) and the World Health Organization (2009)
7. CEDAW Committee General Recommendation 19, Violence against Women, U.N. Doc.
A/37/48
8. International Conference on Population and Development Programme of Action
Programme of Action 1993
Statutory Enactments and Bills
1. Constitution of India,1950
2. Hindu Minority and Guardianship Act, 1956
3. Juvenile Justice (Amendment) Act, 2006
4. Protection of Women from Domestic Violence Act, 2005
5. Medical Termination of Pregnancy Act, 1971
6. Citizenship Act, 1955
7. Hindu Adoption and Maintenance Act, 1956
8. The Draft Assisted Reproductive Technology (Regulation) Bill, 2014

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
S TA TE M E N T OF J U R IS D IC T IO N - -Page vi of x

ST A T E M E N T O F J U R I S D I C T I O N

The petitioners have approached the Hon’ble Supreme Court under Article 32 of the Constitution

which reads as under:

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

(3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and (

2 ), Parliament may by law empower any other court to exercise within the local limits of

its jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2

(4) The right guaranteed by this article shall not be suspended except as otherwise

provided for by this Constitution

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
S TA TE M E N T OF FA C T S - -Page vii of x

ST A T E M E N T OF FA C T S

1. Maria was an Indian national until she acquired US citizenship in 2014 after shifting to the
United States of America in 2010 with her husband, John, a resident US citizen.
2. When the couple realized that they could not conceive, they travelled to India. In October
2015, the couple entered into talks with a licensed Indian surrogacy clinic, the “XYZ ART
Clinic” and through the clinic, entered into an agreement with Seema, a 25 year old house
maid and mother, who agreed to act as the surrogate against the settled consideration and on
usual terms and conditions.
3. In November 2015, the 'Commercial Surrogacy for Foreigners (Miscellaneous) Act, 2015’ was
passed. This Act, inter alia, prohibited foreign nations from availing surrogacy services in India
and made the provision of such services to non-citizens an offense punishable with a fine
and/or imprisonment apart from cancellation of the offending clinic's license. NRIs and PIOs
were however excluded from this restriction. The Act further denied single or unmarried
women the right to commission surrogacy as well as offer services of surrogacy.
4. Following the passing of the above law, the clinic refused to render services to Maria and John
on grounds of nationality of the couple and uncertainty regarding the eligibility of the decided
surrogate mother. The couple faced a similar response at other Indian clinics as well.
5. Aggrieved, Maria approached the Supreme Court with a writ petition, challenging the
constitutionality of the Act on grounds that it was arbitrary, irrational and against natural law.
6. Following this, four other petitions were filed. Three of them, i.e., The Association of Medical
Practitioners of ART Clinics (AMPAC), The All India Mahila Samithi and, The Single Women
(Professional Surrogates) Association also challenging the Act. The Association of Custodians
of Traditional Ethics however filed a petition to request a complete ban on surrogacy on
grounds that it raised health concerns for both the surrogate woman and the father.
The Supreme Court of India has clubbed all these petitions together giving rise to the instant
case.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
S TA TE M E N T O F IS S U E S - -Page viii of x

ST A T E M E N T OF I SSUES

I. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS

(MISCELLANEOUS) ACT, 2015 IS IN VIOLATION OF ARTICLE 14 OF THE
CONSTITUTION?

II. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS

(MISCELLANEOUS) ACT, 2015 IS IN VIOLATION OF ARTICLE 19 OF THE
CONSTITUTION?

III. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS

(MISCELLANEOUS) ACT, 2015 IS IN VIOLATION OF ARTICLE 21 OF THE
CONSTITUTION?

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
SU M M A R Y OF A R G U M E N TS - -Page ix of x

S UMMARYOFA RGUMENTS

I. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS

(MISCELLANEOUS) ACT, 2015 IS IN VIOLATION OF ARTICLE 14 OF THE
CONSTITUTION?
The Petitioners contend that the retrospective application of the Act invokes the doctrine of
legitimate expectation and is arbitrary according to the procedure laid down in Article 14 of the
Constitution. Furthermore, the exclusion of (i) foreign nationals from availing the benefits of
surrogacy (ii) single and unmarried women from offering services of surrogacy (iii) single and
unmarried women from being commissioning parents, the Act does not fulfill the test of intelligible
differentia and rational nexus. Therefore, the Act is in violation of Article 14.
II. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS
(MISCELLANEOUS) ACT, 2015 IS IN VIOLATION OF ARTICLE 19 OF THE
CONSTITUTION?
It is submitted that the Act violates Article 19(1)(g) that is conferred upon the doctors and ART
clinics by not permitting them to offer surrogacy services to foreign nationals and charge fees for
facilitating surrogacy agreements. It is contended that the right to livelihood of single and
unmarried surrogate mothers is also violated. Since these restrictions do not fall within the
permissible ambit of reasonable restrictions under Article 19, they are in violation of Article 19.
III. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS
(MISCELLANEOUS) ACT, 2015 IS IN VIOLATION OF ARTICLE 21 OF THE
CONSTITUTION?
It is submitted that the exclusion of single and unmarried women from commissioning surrogacy
infringes upon their right to reproductive autonomy whereas the exclusion of single and unmarried
women from offering services of surrogacy curtails their right to personal liberty, both of which
are protected by the right to privacy enshrined in Article 21. The Act violates the right to livelihood
that accrues to surrogate mothers and doctors. Additionally, the denial of surrogacy services to
foreign couples, single and unmarried women is in violation of the right to health.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 1 of 16

W RITTEN S UBMISSIONS

1. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT, 2015 IS

IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION?

The instant issue has arisen out of the following facts. Maria, an Indian citizen married a foreign
national and subsequently took up US Citizenship in 2014. On a visit to India in October 2015, the
couple visited a licensed Indian surrogacy clinic, the “XYZ ART Clinic”. Through “XYZ” they
entered into an agreement with Seema, a 25 year old house maid and mother of a four year old
child, who agreed to act as their surrogate. However, in November 2015, India passed the
‘Commercial Surrogacy for Foreigners (Miscellaneous) Act, 2015.’1 The Act banned the Assisted
Reproductive Technology2 Clinics from providing surrogacy treatment to foreign nationals.3 It
also barred single and unmarried women from commissioning surrogacy as well as offering
services of surrogacy.4 Maria, along with the Association for Medical Practitioners and Clinics,
All India Mahila Samiti and the Single Women (Professional Surrogates) Association have
challenged the constitutional validity of the Act before this Hon’ble Court.

It is humbly submitted that the right to equality has been recognized as a part of the basic structure
of the Constitution.5 The framework of Article 14 is such that it permits reasonable classification
of persons. In order to test whether a classification is reasonable, it must be proved that the
classification is based on intelligible differentia with a rational nexus to the object it seeks to
achieve.6 It is submitted that retrospective application of the Act is in violation of Article 14 of
the Constitution in that it denies the petitioner access to the surrogacy treatment despite the having
been enacted at a later date. The Petitioners contend that in the exclusion of (i) foreign nationals
from availing the benefits of surrogacy (ii) single and unmarried women from offering services of
surrogacy (iii) single and unmarried women from being commissioning parents, the Act is in
violation of Article 14 of the Constitution and is therefore ultra vires the basic structure of the
Constitution.
1
Hereinafter, “the Act”.
2
Hereinafter, “ART”.
3
Provision 1, the Act.
4
Provision 2, the Act.
5
Raghunathrao Ganpatrao v. Union of India, AIR 1993 SC 1267.
6
In re: The Special Courts Bill, 1978, (1979) 1 SCC 380.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 2 of 16

1.1. THAT RETROSPECTIVE APPLICATION OF THE ACT IS IN VIOLATION OF ARTICLE 14 OF THE

CONSTITUTION
1.1.1. It is humbly submitted that the doctrine of legitimate expectation can be invoked when the decision
of the administrative authority deprives a person of some benefit which he had been previously
permitted to enjoy by the decision maker.7 Such benefit entitles him to legitimately expect to be
permitted to enjoy the same until some rational ground for withdrawing it has been communicated
to him and he has been given an opportunity to comment thereon.8 The failure to consider and give
due weight to such expectations may render state policies as arbitrary and in violation of Article
14.9This is in consonance with the duty of the State to treat individuals with full personal
consideration and without any abuse of discretion.10
1.1.2. In the instant case, prior to November 2015, there was no law preventing foreign nationals from
availing the services of Indian ART clinics.11 As a result, foreign couples who had travelled to
Inca before the enactment of the Act for the purpose of availing surrogacy services held a
legitimate expectation of the continuation of an amenable surrogacy policy. It is submitted that if
the Act is applied retrospectively, it would be unfair to unsuspecting foreign couples, such as the
petitioner who have initiated the surrogacy process and are left without any remedy. This invokes
the doctrine of legitimate expectation.12 Therefore it is open to judicial review under Article 14.
1.2. THAT THE EXCLUSION OF FOREIGN NATIONALS FROM AVAILING THE BENEFIT OF SURROGACY IS
IN VIOLATION OF ARTICLE 14 OF THE CONSTITUTION

1.2.1. The right to equality under Article 14 confers equal protection of the laws upon all persons within
the territory of India, irrespective of their origin13 and the right extends to foreign

7
M/s Sethi Auto Service Station v. Delhi Development Authority & Ors., AIR 2009 SC.
8
Madras City Wine Merchants Association v. State of Tamil Nadu, (1994) 5 SCC 509; Council of Civil Service
Unions & Ors. v. Minister for the Civil Service, [1983] UKHL 6.
9
Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries, AIR 1993 SC 1601; Union of India & Ors. v.
Hindustan Development Corporation & Ors., AIR 1994 SC 988.
10
National Buildings Construction Corporation v. S. Raghunathan & Ors., AIR 1998 SC 2779.
11
Page 1, Factsheet.
12
Navjyoti Coop. Group Housing Society v. Union of India, (1992) 4 SCC 477; Notification No. V.25011/119/2015-
HR, Ministry of Health and Family Welfare, Government of India (4th November 2015).
13
Additional Secretary to the Government of India and Ors. v. Smt. Alka Subhash Gadia and Anr., [1990] Supp 3
SCR 583.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 3 of 16

nationals.14 Therefore any restriction on their right to equality will necessarily need to fulfil the
dual test of intelligible differentia and rational nexus with the intended object. It is submitted that
in order to decide whether a restriction satisfies the above criteria, the Court must look into the
underlying purpose of the restriction and the evils sought to be remedied by the law 15 while
examining the adequacy of a less restrictive alternative. 16
1.2.2. Most countries that have statutes governing surrogacy have excluded foreign nationals from
availing of surrogacy services. The immediate reason behind such a ban is the inconsistency in
national policies governing legal recognition of the children born out of surrogacy agreements. 17
For instance, in Italy, in a pending case, the non-recognition of the birth certificate of a child born
through international surrogacy led to the separation of the infant from its surrogate parents. 18
Similarly, the European Court of Human Rights19 refused to grant legal recognition to parent-child
relationships that had been legally established through international surrogacy arrangements. 20 In
response to the Baby Gammy case which brought up citizenship rows in Thailand, the Protection
of Children Born from Assisted Reproductive Technologies Act, 2015 was enacted which
effectively banned foreigners from entering into surrogacy agreements. Such problems have also
been witnessed in India as in the case of Jan Balaz v. Anand Municipality.21 Therefore it may be
reasonably deduced that the object behind the exclusion of foreign nationals from being
commissioning parents is the possible issues regarding the citizenship of the children born pursuant
to the agreement.
1.2.3. It is humbly submitted that the classification of foreign nationals under the ambit of the Act22
expressly excludes Non-resident Indians23 and Persons of Indian Origin.24 It must be noted that

14
Israel Military Industries Ltd. v. Union Of India & Anr., WP(C) 2620/2012.
15
M.J. Sivani and Ors. v. State of Karnataka and Ors., (1995) 6 SCC 289.
16
State of Gujarat v. Mirzapur Moti Kureshi Kassab Jamat and Ors., AIR 2006 SC 212.
17
K (Minors) (Foreign Surrogacy), EQHC (Family Division), Case No: FD09P02848.
18
Paradiso and Campanelli v. Italy, no.25358/12, European Council Human Rights (2015).
19
Hereinafter, “ECHR”.
20
Mennesson v. France, no.65192/11, ECHR (2014); Labassee v. France, no.65941/11, ECHR (2014).
21
Jan Balaz v. Anand Municipality, AIR 2010 Guj 21.
22
Provision 1, the Act.
23
Hereinafter, “NRI”.
24
Hereinafter, “PIO”.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 4 of 16

unlike NRI’s, PIO’s do not hold Indian passports. The Draft Assisted Reproductive Technology
(Regulation) Bill, 201425 clearly provides that the surrogate children born to PIOs and OCIs will
not be entitled to Indian citizenship.26 Moreover, the Bill merely confers a limited entitlement of
Oversees Citizen of India status to children born to Oversees Citizens of India as under the
Citizenship Act, 1955.27 Therefore, similar to any foreign couple, the children born out of
surrogacy will be taken back to the country of the commissioning parents which affirms the
possibility of citizenship issues in the case of PIO’s as well.
1.2.4. Article 14 forbids hostile classification by law which treats persons similarly circumstanced
differently or treating those not similarly circumstanced in the same way.28It is submitted that in
the instant case, treating PIOs and NRIs equally while creating a distinction between PIOs and
foreigners amounts to an unreasonable classification because it is not based on any intelligible
differentia. Therefore, the Act is in violation of Article 14.
1.2.5. It is further submitted that there exist alternative methods to tackle citizenship issues that may
instead be employed to achieve the same object. Possible methods have been elucidated in the
ART Bill, 2014. These include a mandatory provision of a letter from either the local embassy of
the Country or from the appropriate Government Authority stating that the child, or children born
through surrogacy, shall be permitted entry in the country as a biological child or children of the
commissioning couple and that the party shall be able to take such a child outside of India to the
country of the party’s origin or residence, as the case may be.29The Bill also imposes a penalty on
commissioning parents who fail to take custody of the child without genuine reasons.30 Similarly,
in Ireland, the government issues emergency travel documents to the child within two days of its
arrival within the country in order to ensure best interests of the child while the adjudication of
citizenship is still sub judice.31

25
Hereinafter, “ART Bill 2014”.
26
Sec. 61(7), ART Bill 2014.
27
Sec. 61(7), ART Bill 2014.
28
Union of India and Anr. v. Tulsiram Patel and Ors., AIR 1985 SC 1416.
29
Section 60(21)(b), ART Bill, 2014.
30
Section 60(21)(c)(i)(d), ART Bill, 2014.
31
Citizenship, Parentage, Guardianship And Travel Document Issues In Relation To Children Born As A Result Of
Surrogacy Arrangements Entered Into Outside The State, The Minister for Justice, Equality and Defence (February
21, 2012).

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 5 of 16

1.2.6. The exclusion of foreign couples has also been advocated in light of the increasing threat of
exploitation and trafficking posed to the surrogate mothers. Commercial surrogacy has been
operating on an unregulated basis in India. While efforts have been made to regulate ART clinics
such as the guidelines released by the Indian Council of Medical Research,32 they have not had the
force of law and thereby implementation has been harder to enforce. 33 It is submitted that in status
quo, the risks of exploitation have only been assessed in a pre-regulation framework. A blanket
ban on foreigners from availing of surrogacy will move surrogacy arrangements to the black
markets, and expose the surrogates to a greater risk of exploitation.34 Hence bringing foreigners
within the ambit of regulation is the lesser of the two evils. This rationale was also offered in the
case of inter-country adoption wherein the Government was concerned with the exploitation of
children. The Supreme Court, while holding that it must be allowed, laid down detailed principles
and norms to be followed for the adoption of children by foreigners.35It is submitted that the
blanket exclusion of foreigners does not serve any rational purpose and therefore the Act is in
violation of Article 14.
1.3. THAT THE EXCLUSION OF SINGLE AND UNMARRIED WOMEN FROM BEING COMMISSIONING
PARENTS AND OFFERING SERVICES OF SURROGACY IS IN VIOLATION OF ARTICLE 14 OF THE

CONSTITUTION
1.3.1. Single and unmarried women as commissioning parents:
A. Indian law allows for women to adopt children irrespective of marital status. Section 8 of the Hindu
Adoption and Maintenance Act, 1956 allows for unmarried Hindu women to adopt a son or a
daughter. Similarly, under the Juvenile Justice (Amendment) Act, 2006 the ability of a woman to
adopt has been recognized irrespective of her marital status.36 Therefore, the competence of single
women to be a parent is not in dispute.37 Courts have recognized that the term maternity extends
to females who employ services of another female to procreate with or

32
National Guidelines for Accreditation, Supervision, Regulation of ART Clinics in India, Indian Council of
Medical Research (2005).
33
GITA ARAVAMUDHAN, BABY MAKERS: THE STORY OF INDIAN SURROGACY (2014); Anil Malhotra and Ranjit
Malhotra, All Aboard For the Fertility Express, 38 COMMONWEALTH LAW BULLETIN 1 (2012).
34
E. Anderson, Is Women’s Labour a Commodity?, VALUE IN ETHICS AND ECONOMICS (1995).
35
Lakshmi Kant Pandey v. Union of India, AIR 1984 SC 469.
36
Section 41(6), Juvenile Justice (Amendment) Act, 2006; In Re: Adoption of Payal @ Sharinee Vinay Pathak and
his wife Sonika Sahay @ Pathak, 2010 (1) Bom CR 434.
37
ABC v. State (NCT of Delhi), AIR 2015 SC 2569; Section 6(b), Hindu Minority and Guardianship Act, 1956.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 6 of 16

without a male partner, observing that attributing a truncated meaning result in depriving a large
number of women of their right to avail of a vital service benefit, only on account of the choice
that they would have exercised in respect of child birth.38
B. The Supreme Court has also observed that in today’s society, where women are increasingly
choosing to raise their children alone there is no purpose in imposing an unwilling and unconcerned
father on an otherwise viable family nucleus.39 In this context, it has been held that a statute which,
while furthering the interest in potential life or some other valid state interest, has the effect of
placing a substantial obstacle in the path of a woman's choice cannot be considered a permissible
means of serving its legitimate ends.40 It is therefore submitted that Provision 2 of the Act places
an unreasonable restriction on a single woman’s right to procreate and amounts to an infringement
of her right to free choice. This denial of equal protection is in contravention of the Constitution.41
C. It is submitted that Provision 2 of the Act has classified women based on marital status thereby
excluding unmarried women from being commissioning parents. India has accorded legal
recognition to live-in relationships42 by considering them to be relationships in the nature of
marriage.43 Such women are conferred with all benefits normally due to a wife under the Protection
of Women from Domestic Violence Act, 2005 by being included in the definition of a ‘domestic’
relationship.44 They are also given other rights that are available only to spouses, such as, the right
to inherit property after the death of her partner.45 Similarly, the children born out of such
relationships are also considered legitimate.46The Court has also put to rest all questions regarding
the best interests of the child by endorsing the view that if the best possible and most stable and
permanent family route for a child is with a couple who are not married, then the law

38
Rama Pandey v. Union of India and Ors., 221 (2015) DLT 756; Durban in MIA v. State Information Technology
Agency (Pty) Ltd., (D312/2012) [2015] ZALCD20.
39
ABC, supra note 37.
40
Akron v. Akron Center for Reproductive Health, Inc., 462 U.S. 416.
41
Mithilesh Kumari v. Prem Behari Khare, (1982) 2 SCC 95.
42
Uday Gupta v. Aysha and Anr,. 2014 (7) SCJ 209.
43
Svetlana Kazankina and Ors .v. Union of India and Ors,. 225 (2015) DLT 613.
44
Section 2(f), Protection of Women from Domestic Violence Act, 2005.
45
Svetlana, supra note 43.
46
S.P.S. Balasubramanyam v. Suruttayan Alias Andali Padayachi and Ors., AIR 1992 SC 756.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 7 of 16

should not stand in the way of such an arrangement.47 It is submitted that after having recognized
live-in relationships as intrinsically similar to marriages, depriving infertile women in such
relationships of the right to commission surrogacy would amount to an unreasonable restriction on
their right to procreate. Therefore the restriction on unmarried women from being commissioning
parents does not satisfy the rational nexus test and is in violation of Article 14.
1.3.2. Single and unmarried women as surrogates:
A. It is submitted that the exclusion of single and unmarried women from acting as surrogates results
in granting a set of women reproductive autonomy while depriving another set this autonomy based
on their marital status. The rationale to mandate such exclusion seems to be that single and
unmarried women would not have given birth previously.48 It is the Petitioners’ contention that
this presumption is flawed in itself. This is because a woman may have given birth outside of a
marriage or may have given birth during the subsistence of a marriage which has now dissolved.
Both these possibilities have been ignored under the instant classification.
B. Courts have discouraged any discrimination against classes of women that curtails their
reproductive autonomy.49 Moreover, regulations impinging on this autonomy can only be upheld
if they have no significant impact on the woman's exercise of her right and are justified by
compelling state health objectives.50 In the instant case, there are no public health concerns arising
out of gestational surrogacy that affect single and unmarried surrogates more than they affect
married surrogate offering surrogacy services.51 It is submitted that there is no rationale to exclude
single and unmarried women from offering surrogacy services. Therefore, Provision 2 of the Act
is in violation of Article 14.
2. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT, 2015 IS

IN VIOLATION OF ARTICLE 19 OF THE CONSTITUTION?

47
Indra Sarma v. V.K.V. Sarma, AIR 2014 SC 309; R (Alconbury Developments Ltd) v. Secretary of State for the
Environment, Transport and the Regions, [2003] 2 AC 295.
48
Statement of Specific Principles for Assisted Reproductive Technologies: Ethical Guidelines For Bio-medical
Research and Human Participants, Indian Council of Medical Research (2006).
49
Inspector (Mahila) Ravina v. UOI and Ors., W.P.(C) 4525/2014.
50
Planned Parenthood of Central Missouri. v. Danforth, 428 U.S. 52 (1976).
51
Anu, Pawan Kumar, Deep Inder, Nandini Sharma, Surrogacy and Women’s Right to Health in India: Issues and
Perspective, 57 INDIAN JOURNAL OF PUBLIC HEALTH 2 (2013).

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 8 of 16

The instant issue has arisen out of two writ petitions filed before the Hon’ble Supreme Court. The
writ petition filed by the Association of Medical Practitioners of ART Clinics52 challenges the Act
on the ground that it is in violation of the doctors' and clinics' fundamental right to practice any
profession or to carry on any trade under Article 19 (1) (g) of the Constitution. The Single Women
(Professional Surrogates) Association also filed a writ petition challenging the provision which
restricts the right of single women to act as surrogates stating that it is in violation of a woman’s
right to trade and profession under Article 19 (1) (g).
It is humbly submitted that Article 19 has been held to be a part of the basic structure of the
Constitution.53 The doctrine of basic structure provides that there are certain fundamental tenets
enshrined in our Constitution that may not be abridged under any circumstance because the very
essence of our Constitution will change with the change in such basic features.54 Therefore, no law
may be passed in abrogation of the rights under Article 19. The petitioners contend that the Act is
in violation of Article 19 on two grounds. Firstly, doctors and clinics have a right to offer medical
services to all people who want to avail of surrogacy services and all women are allowed to choose
surrogacy as a profession. Secondly, the restrictions imposed55 by the Act are not saved by Article
19(6).
2.1. THAT THE DOCTORS, CLINICS AND SINGLE WOMEN HAVE A RIGHT TO PRACTICE SURROGACY AS
A TRADE OR PROFESSION UNDER ARTICLE 19(1)(G) OF THE CONSTITUTION

2.1.1. The Supreme Court has held that the term 'freedom' under Article 19(1)(g) means that every citizen
has a right to choose his own employment or to take up any trade or calling, subject only to the
limits as maybe imposed by the state in the interest of public welfare and the grounds mentioned
in Article 19(6).56 It is submitted that the right extends to all professions, trade and occupations
except those that have been considered inherently noxious and outside commerce and thereby
excluded from the guarantee under Article 19(1)(g).57 Every other activity which is capable of
yielding profit and affording livelihood to an individual or body of persons is deemed

52
Hereinafter, "AMPAC".
53
Minerva Mills Ltd. and Ors. v. Union of India and Ors., (1980) 3 SCC 625.
54
His Holiness Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala and Anr., (1973) 4 SCC 225 .
55
Provisions 1 and 2, the Act.
56
Saghir Ahmed v. State of U.P, [1955] 1 SCR 707(717).
57
Manushi Sangathan, Delhi v. Government of Delhi and Ors., 168 (2010) DLT 168.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 9 of 16

legitimate and is protected as a guaranteed fundamental right.58 In the instant matter, commercial
surrogacy has been recognized as legal.59 In discussing the same, the Supreme Court has previously
acknowledged that there is nothing inherently wrong with the practice of commercial surrogacy as
such and has quoted examples from jurisdictions across the world to establish that it is a prevalent
practice.60
2.1.2. Therefore, it is the contention of the petitioners that the Act is in violation of the guarantee
provided by Article 19(1) (g) on two counts. First, in disallowing doctors and clinics to extend
their practice and cater to foreign nationals and further restricting the clinics from charging a fee
when they facilitate agreements between the intending parties of the surrogacy contract.61 Second,
in disallowing single women to be commissioning parents.
2.2. THAT THE RESTRICTIONS IMPOSED BY THE ACT ARE NOT SAVED BY ARTICLE 19(6)
2.2.1. It is submitted that as per Article 19(6), the state may make any law imposing restrictions on the
right guaranteed under Article 19(1)(g) in the interests of the general public, so long as such
restrictions are reasonable.62 In the instant case, the restrictions imposed by the Act are not in the
interest of the general public and therefore are not saved by Article 19(6). The term 'in the interest
of general public' has been said to include public order, public health, public security, morals, and
economic welfare.63 It is our contention that none of these objectives are fulfilled by the Act.
2.2.2. Foreign Nationals:
Concerns raised over allowing foreign nationals from availing surrogacy services in India include
fear of exploitation of surrogate mothers by the commissioning parents.64 It is the submission of
the petitioners that banning cross-border surrogacy will not reduce exploitation and therefore no
interest of the public will be served. The same service would be provided to foreign citizens
through unauthorized clinics in isolated or hidden places leading to exploitation of potential
surrogate mothers and other malpractices. The unauthorized markets will thrive
58
Id.
59
Baby Manji Yamada v. Union of India and Anr., (2008) 13 SCC 518.
60
Union of India and Anr. v. Jan Balaz and Ors., 2015 (4) RCR (Civil) 881.
61
Provision 3, the Act.
62
Rajasthan Pradesh V.S. Sardarshahar and Anr. v. Union of India (UOI) and Ors., AIR 2010 SC 2221.
63
Mirzapur, supra note 16.
64
Jan Balaz, supra note 60.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 10 of 16

because the demand for surrogate mothers will remain constant as will the number of women who
wish to earn via surrogacy. The prime example of such black markets flourishing is in the
commercial organ trade industry.65 Further, the black markets will also be able to thrive since
foreign nationals are still allowed to adopt Indian children.66 Therefore, no public interest is served
in banning foreign nationals from availing surrogacy services. Instead a regime of regulation must
be put in place and the surrogates, doctors and clinics must be allowed to continue catering to
foreign nationals in pursuance of their right under Article 19(1) (g).
2.2.3. Single women:
Reasons to disallow single women from being surrogates include threat of exploitation and social
stigmatization. In examining this claim, it is important to take into account the judicial attitude
towards professions which are claimed to have the potential to be exploitative. In relation to
women working in bars, it has been held that instead of putting curbs on women’s freedom,
regulation of the concerned profession would be a more tenable and socially wise approach to
prevent exploitation.67 In considering the rights of women to be bar dancers, the Supreme Court
observed, “It is true that bar dancers constitute a vulnerable section of the marginalised society.
That, however, by itself does not mean that once their right of gainful employment or carrying on
an occupation or profession in a particular place is prohibited.”68 The Court emphasized on
regulation and not on the exclusion of parties to undertake a particular profession, stating that
empowerment should reflect in the law enforcement strategies of the State.69 Therefore, in
imposing this restriction, not only is no public interest served, but also a socially regressive move
is given effect.
3. WHETHER THE COMMERCIAL SURROGACY FOR FOREIGNERS (MISCELLANEOUS) ACT, 2015 IS

IN VIOLATION OF ARTICLE 21OF THE CONSTITUTION?

This issue has arisen out of the following writ petitions. The All India Mahila Samithi approached
the Hon’ble Supreme Court challenging the Act on the ground that it was in violation of the right

65
Illegal trade in human organs, Letter by the Chairperson of National Human Rights Commission to the Prime
Minister, January 29, 2004.
66
Guidelines Governing Adoption of Children, Ministry of Women and Child Development, New Delhi, July 17,
2015.
67
Anuj Garg and Ors. v. Hotel Association of India and Ors., (2008) 3 SCC 1.
68
State of Maharashtra and Ors. v. Indian Hotel and Restaurants Association and Ors., AIR 2013 SC 2582.
69
Id.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 11 of 16

to livelihood guaranteed under Article 21 of the Constitution. They alleged that there is no basis
for discrimination on the ground of nationality and such discrimination only results in the
surrogates being denied attractive rates for the same work which improves their living conditions
and provide good education to their children. Further, the Single Women (Professional Surrogates)
Association also challenged the provision which restricts the right of single woman to act as
surrogate on the grounds that it was in violation of their ‘right to reproduction’ and ‘right to be a
parent’.70

The petitioners contend that the Act is in violation of Article 21 on three grounds. Firstly, that the
right to privacy of single women is violated, in that, their reproductive autonomy and bodily
integrity is being subjected to state interference without any compelling interest being at stake.
Secondly, in prohibiting foreign nationals from availing surrogacy services, the right to livelihood
of the surrogate mothers and doctors is violated. Thirdly, that the right to health of the
commissioning parents is violated because the Act prevents them from reaching a mental state of
well-being by being parents. The right to health of the surrogate mother is also violated by the
provision that declares that ART clinics shall not be involved in the contract of surrogacy.71

3.1. THAT THE ACT CURTAILS THE RIGHT TO PRIVACY GUARANTEED BY ARTICLE 21 OF THE

CONSTITUTION
3.1.1. Reproductive autonomy:
A. The right to privacy enshrined under Article 21 of the Constitution recognizes that all individuals
have the right to safeguard the privacy of his or her own, family, marriage, procreation,
motherhood, child bearing and education among many other matters.72 This right to be left alone
has been characterized as individual autonomy that precludes any form of state interference. Courts
have held that the right to bear or beget a child and, conversely, the right not to reproduce73 is a
fundamental right encompassed within the right to privacy thereby protecting reproductive
autonomy.74It has been held that an individual's reproductive autonomy must be

70
Page 4, Factsheet.
71
R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632.
72
Gobind v. State of Madhya Pradesh and Anr., 1975 CriLJ 1111.
73
B.K. Parthasarathi v. State of AP, 2000 (1) ALD 199.
74
Eisenstadt v. Baird, 405 U.S. 38; Skinner v. Oklahoma, (1942) 316 US 535.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 12 of 16

upheld against state intrusion so as to forbid the State from usurping such rights without
overwhelming social justification.75
B. Moreover, the Courts have reasoned that the right to submit to medical techniques to bring about
should be included within the cluster of legally protected choices such as the right to use
contraceptives76 and the right to abortion.77 Extending this line of argumentation, if the
Constitution protects coital reproduction from state interference, it can be inferred that non-coital
reproductive means involving the couple’s own gametes should also beget equal constitutional
protection.78 The need for a third party donor or surrogate to the couple to beget, bear or otherwise
acquire a child should, under these principles of procreative liberty, also fall within procreative
rights.79 It is submitted that since the Act forbids foreigners, single and unmarried women from
being commissioning parents,80 it curtails their reproductive autonomy and is in violation Article
21 of the Constitution.
3.1.2. Bodily integrity:
The right to privacy guaranteed by Article 21 encompasses the right to bodily integrity and
personal liberty.81 That is, the right of an individual to be free from restrictions or encroachments
on his person, whether those restrictions or encroachments are directly imposed or indirectly
brought about by calculated measures.82 The right to make decisions about reproduction also falls
within the ambit of personal liberty.83 Such a right may not be interfered with under the guise of
protecting public interest by legislative action which is arbitrary.84 The Act, in barring single and
unmarried women from being surrogates amounts to such arbitrary legislative action.

75
T. Sareetha v. T. Venkata Subbaiah, AIR 1983 AP 356.
76
Griswold v. Connecticut, 381 U.S. 479, 484 (1965); Suchita Srivastava and Anr. v. Chandigarh Administration,
AIR 2010 SC 235.
77
Medical Termination of Pregnancy Act, 1971; Roe v. Wade, 410 U.S. 113 (1973).
78
Lifchez v. Hartigan, 735 F. Supp. 1361 (1990).
79
LEGAL AND ETHICAL ISSUES IN HUMAN REPRODUCTION,THE INTERNATIONAL LIBRARY OF MEDICINE, ETHICS AND
LAW 24 (Bonnie Steinbock ed., 1st Edn., 2002); John A. Robertson, The Right To Procreate and In Utero Fetal
Therapy, 3 JOURNAL OF LEGAL MEDICINE 44 (1982).
80
Provision 2, the Act.
81
Smt. Selvi v. State of Karnataka, AIR 2010 SC 1974.
82
Kharak Singh v. State of U.P. and Ors., AIR 1963 SC 1295.
83
S. Amudha v. Chairman, Neyveli Lignite Corporation, (1991) 1 MLJ 137.
84
Meyer v. Nebraska, (1923) 67 L Ed 1042.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 13 of 16

3.1.3. International legal instruments:

International legal instruments have upheld the right to privacy by protecting an individual’s
family from interference. The right to reproduce has also been internationally recognized as a
derivative of the right to found a family, both of which are protected under the right to personal
liberty and security. The Universal Declaration of Human Rights, 1948 and the International
Covenant on Civil and Political Rights provide men and women of full age without any limitation
due to race, nationality or religion the right to marry and found a family.85 The Yogyakarta
Principles have even extended this right to procreate to individuals irrespective of their sexual
orientation.86 Reproductive rights include the right to make decisions concerning reproduction free
of discrimination, coercion and violence with the aim of achieving informed consent.87It is
therefore submitted that the Act violates the state obligations to protect privacy and reproductive
rights under the aforementioned international legal instruments.
3.1.4. Implied Fundamental Rights:
It is an accepted principle of law that the right to life and personal liberty is of the widest
amplitude.88The attempt of the court should be to expand the reach and ambit of the fundamental
rights rather than accentuate their meaning and content by process of judicial construction.89 In
this context, implied constitutional rights would be those which would synchronize with the
express rights guaranteed by the Constitution. Such rights can also be enforced like any other
fundamental right by the citizen of the State. It is submitted that since the right to reproductive
autonomy is a fundamental right, the right to use ART such as surrogacy would qualify as an un-
enumerated fundamental right. These constitutionally recognized rights also qualify as natural
rights that are necessary for the realization of the right to life.90
3.2. THAT THE ACT IS IN VIOLATION OF THE RIGHT TO LIVELIHOOD UNDER ARTICLE 21

85
UN General Assembly, Universal Declaration of Human Rights, Art. 16(1), 10 December 1948, 217 A (III); UN
General Assembly, International Covenant on Civil and Political Rights, Art. 23(2), 16 December 1966, United
Nations Treaty Series, vol. 999, p. 171.
86
Principle 24, Yogyakarta Principles - Principles on the Application of International Human Rights Law in
Relation to Sexual Orientation and Gender Identity, International Commission of Jurists, (2007).
87
Report of the International Conference on Population and Development, Principle 1, A/CONF.171/13 (18 October
1994).
88
Unni Krishnan, J.P. and Ors. v. State of Andhra Pradesh and Ors., AIR 1993 SC 2178.
89
Pathumma v. State of Kerala, [1978] 2 SCR 537.
90
I.C. Golaknath v. State of Punjab, [1967] 2 SCR 762.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 14 of 16

3.2.1. The right to life extends to all those faculties that are necessary to live a life with dignity and
equality.91 The expression includes the right to livelihood, better standard of living and hygienic
conditions in work place and leisure.92 The restrictions of right to livelihood can be justified if it
is according to procedure established by law, such law being fair, just, and reasonable both
substantively and procedurally.93 In the instant case, only single and unmarried women were barred
from being surrogate mothers. This denies them the right to earn their livelihood in this sector and
consequently places them at an economic disadvantage as compared to the married surrogates.
Likewise, the ART clinics were prevented from offering such treatment to foreign commissioning
couples, single and unmarried women.94 In disqualifying the aforesaid groups of people from
availing surrogacy, a sizeable proportion of the demand is eliminated which has an adverse effect
on the income of both the surrogate mothers as well as the clinics. As has been established
previously, such classifications are arbitrary and therefore do not comply with the standard of
substantive due process.
3.2.2. As a result of this classification, the category of women excluded by the Act to act as surrogate
mothers would be rendered vulnerable by the loss of freedom because of the impugned Act. 95
Furthermore, there is no compelling interest that justifies the deprivation of livelihood of the ART
clinics as has been established above. Therefore, the restrictions on livelihood are not valid and
curtail the right to livelihood protected by Article 21 of the Constitution.
3.3. THAT THE ACT VIOLATES THE RIGHT TO HEALTH UNDER ARTICLE 21
3.3.1. Commissioning Parents:
Health has been recognized as the state of complete physical, mental and social well-being and not
merely the absence of disease or infirmity thereby falling under the ambit of right to life in Article
21.96 Infertility has been defined as “a disease of the reproductive system defined by the failure to
achieve a clinical pregnancy after 12 months or more of regular unprotected sexual

91
Ashoka Kumar Thakur v. Union of India, (2008) 6 SCC 1.
92
Olga Tellis v. Bombay Municipal Corporation, (1985) 3 SCC 545.
93
Maneka Gandhi v. Union of India, (1978) 1 SCC 248.
94
Provision 2, the Act.
95
Anuj Garg, supra note 67.
96
Pt. Parmanand Katara v. Union of India, (1989) 4 SCC 286.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 W R IT T E N S U B M IS S IO N S - -Page 15 of 16

intercourse."97 The growth in the use of ART methods is due to the recognition of the fact that
infertility as a medical condition is a huge impediment in the overall wellbeing of couples.98 The
Courts have held that right to health and medical care is a fundamental right under Article 21 read
with Articles 39(c), 41 and 43 of the constitution.99 This encompasses the professional
responsibility to provide medical services in keeping with the technological advancement.100
Therefore, by denying single, unmarried women, and foreigners from availing of surrogacy, the
Act violates their right to health under Article 21.
3.3.2. Surrogate mothers:
The Act provides that dealings between commissioning parents and the surrogate woman would
be on principal-to-principal basis without any liability or involvement of ART Clinics. The
surrogates are entitled to full knowledge regarding the risk to their health before they give their
consent and the contract is signed. The concept of informed consent i.e., the patient having an
adequate level of information about the nature of the procedure to which he is consenting to has
been held to be integral to all medical procedures.101 In the instant case, since the point of consent
is the signing of the contract, such contract cannot be signed without the involvement of the ART
clinics since it is the clinics that are best placed to inform the surrogates of the possible health
risks. Such a clause directly violates the health of the surrogate mothers.
3.3.3. International legal instruments:
Under international conventions such as the United Nations Commission on Human Rights, the
right to health includes the right to a system of health protection which provides equality of
opportunity for people to enjoy the highest attainable level of health as well the right to sexual and
reproductive freedoms.102 To this end, states recognize the right to benefits of scientific

97
Revised Glossary of ART Terminology, International Committee for Monitoring Assisted Reproductive Technology
(ICMART) and the World Health Organization (2009); Section 2(v), Draft Assisted Reproductive Technology
(Regulation) Bill, 2014.
98
Report of the Law Commission of India (2009).
99
C.E.S.C. Limited and Ors. v. Subhash Chandra Bose and Ors., AIR 1992 SC 573.
100
Paschim Banga Khet Mazdoor Samity v. State of West Bengal, AIR 1996 SC 2426.
101
Samira Kohli v. Dr. Prabha Manchanda and Anr., AIR 2008 SC 1385; Canterbury v. Spence, 1972 [464] Federal
Reporter 2d. 772.
102
Factsheet No. 31, UN Commission on Human Rights (2003); Committee on Economic Social and Cultural Rights,
General Comment No. 14 (2000); Paragraph 41, UN General Assembly, International Covenant on Economic, Social
and Cultural Rights, 16 December 1966, United Nations Treaty Series, vol. 993, p. 3.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
W R IT T E N S U B M IS S IO N S - -Page 16 of 16

progress and its applications.103 The prevention and appropriate treatment of infertility has been
included in the International Conference on Population and Development Programme of Action104
as a component of the primary health care system.105 The Programme of Action further provides
the right of access to appropriate health-care services that will enable women to go safely through
pregnancy and childbirth and provide couples with the best chance of having a healthy infant. 106
Since India is signatory to the Programme of Action and a member of the UNCHR, the
aforementioned commitments are binding. Therefore, it is submitted that the Act is in
contravention of India’s obligations under international covenants.

103
Article 15(1), International Covenant on Social, Economic and Cultural Rights, 993 UNTS 3 (1996).
104
Hereinafter, “the Programme of Action 1993”.
105
Programme of Action 1993; CEDAW Committee General Recommendation 19, Violence against Women, U.N.
Doc. A/37/48.
106
Principle 8, Programme of Action.

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
PR A Y E R - -Page x of x

PR A Y E R

WHEREFORE IN LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED AND

AUTHORITIES CITED, IT IS HUMBLY PRAYED THAT THIS HONORABLE COURT
MAY BE PLEASED TO:

I. HOLD THAT THE 'COMMERCIAL SURROGACY FOR FOREIGNERS

(MISCELLANEOUS) ACT, 2015 IS UNCONSTITUTIONAL.

Counsel for Petitioners

- M E M O R IA L O N B E H A L F O F TH E P E T I T I O N E R S -
 JAMIA CLINICAL

MOOT COURT, 2020

BEFORE THE COURT OF SESSIONS AT KOLKATA

S.C. NO.101 OF 2016

STATE OF WEST BENGAL

(PROSECUTION)
V.
ABHISHEK, ANGAD & DUSHYANT
(DEFENCE)

FOR OFFENCES CHARGED UNDER:

SECTION 186, 107 & 304 READ WITH SECTION 34 OF THE INDIAN PENAL
CODE, 1860

UPON SUBMISSION TO THE HON‟BLE SESSIONS JUDGE

MEMORANDUM ON BEHALF OF THE DEFENCE

 TABLE OF CONTENTS
LIST OF ABBREVIATIONS............................................................................................................................................................ c
TABLE OF CASES ................................................................................................................................................. E
BOOKS .....................................................................................................................................................................H
STATUTES................................................................................................................................................................ I
STATEMENT OF JURISDICTION ................................................................................................................................................... j
STATEMENT OF FACTS .............................................................................................................................................................. k
STATEMENT OF CHARGES .......................................................................................................................................................... l
SUMMARY OF ARGUMENTS ................................................................................................................................................... m
ARGUMENTS ADVANCED .......................................................................................................................................................... 1
A. THAT THE ACCUSED CAN BE CHARGED UNDER S.304 OF IPC FOR HIS ACT ......................... 1
1. THERE WAS REASONABLE APPREHENSION ON THE PART OF THE INSPECTOR .................. 1
2. ACTS WHICH ARE JUSTIFIABLE BY LAW .......................................................................................... 4
3. LAW INTENDS TO PROVIDE RIGHT TO PRIVATE DEFENCE TO EVERY PERSON ................. 5
4. THE DEATH OF THE PUBLIC SERVANT WAS AN ACCIDENT UNDER S.80 OF THE INDIAN
PENAL CODE ......................................................................................................................................................... 6
B. THAT THE CO-ACCUSED ACTUALLY AIDED THE CAUSE OF THE DEATH OF THE
DECEASED WITH COMMON INTENTION OR NOT ...................................................................................... 9

1. THAT WHEN THE ACT LACKS ACTIVE STIMULATION IT DOES NOT AMOUNT TO
ABETMENT ........................................................................................................................................................... 10

2. THAT MERE PRESENCE OF A PERSON DOES NOT DENOTE INSTIGATION FOR

ABETMENT ........................................................................................................................................................... 11

3. THERE WAS NO COMMON INTENTION AMONGST THE ACCUSED AND CO-ACCUSED ..... 12
C. THAT THE ACTS OF THE ACCUSED AND CO-ACCUSED AMOUNTED TO OBSTRUCTING
THE PUBLIC SERVANT UNDER 186 OR NOT? ......................................................................... 13

1. ACTS NOT AMOUNTING TO OBSTRUCTING PUBLIC SERVANTS............................................... 14

PRAYER ......................................................................................................................................................................................o
 LIST OF ABBREVIATIONS

AIR All India Reporter

All Allahabad High Court

Cal Calcutta High Court

Cri LJ / Cr LJ Criminal Law Journal

Cr.P.C. Code of Criminal Procedure

Del Delhi High Court

DW Defence Witness

Ed. Edition

Guj Gujarat High Court

IPC Indian Penal Code

IC Indian Cases

Mad Madras High Court

n. Foot Note no.

Ori Orissa High Court

p. Page No.

P&H Punjab and Haryana High Court

Pat Patna High Court

PW Prosecution Witness

Raj Rajasthan High Court

SC Supreme Court

SCC Supreme Court Cases

SCJ Supreme Court Journal

SCR Supreme Court Reporter

Sec. Section

v. Versus
 INDEX OF AUTHORITIES
TABLE OF CASES:

1. Abdul Hadi v. Emperor, AIR 1934 All 829 ....................................................................6

2. Abid v State of Uttar Pradesh (2009) 14 SCC 710 ......................................................... 3
3. Al Choung v Emperor AIR 1932 Rang 21.....................................................................14
4. Alingal Kunhinayam ,(1905) 23 Mad 454 ...................................................................... 5
5. Arjun v State of Maharashtra (2012) 5 Scale 52, AIR2012 SC 2181 ............................ 2
6. Arun v State of Maharashtra (2009) 4 SCC 615 ........................................................... 3
7. Atmendra v. State of Karnataka 1998 CrLJ 2838 ........................................................... 7
8. B. Ammu v. State of T.N., 2009 CrLJ 866 (Mdr) ........................................................... 10
9. B.S.Survada v. State of Gujarat , 1972 CrLJ 1574 (1577) Guj ....................................... 6
10. Babulal Bhagwan Khandare v State of Maharashtra (2005) 10 SCC 404 .................... 4
11. Badri Gope v King-Emperor AIR 1926 Pat 237 .......................................................... 16
12. Baroda Kanto Prananik, (1896) 1 CWN 74 ................................................................. 14
13. Bihari Rai v. State of Bihar, 2009 CrLJ 340 (SC) .......................................................... 4
14. Buta Singh v State of Punjab AIR 1991 SC 1316 .......................................................... 3
15. Chand Basha v. State, 1999 CrLJ (AP) 3441 ................................................................ 11
16. Chathur Nath v. Emperor AIR 1920 Bom 224 ............................................................... 8
17. Dani Singh v State of Bihar 2005 SCC (Cr) 127 .......................................................... 13
18. Darshan Singh v State of Punjab AIR 2010 SC 1212 .................................................... 2
19. Deo Narain v State of Uttar Pradesh AIR 1973 SC 473 ................................................ 4
20. Dhaneswar Mahakud v State or Orissa (2006) 9 SCC 307 .......................................... 12
21. Dharminder v State of Himachal Pradesh AIR 2002 SC 3097 .....................................2
22. Dominic Varkey v State of Kerala AIR 1971 SC 1208 ................................................... 2
23. Dukhmochan Pandey v State of Bihar KIR 1998 SC 40 ................................................. 5
24. Duyanu Hariba Mail v State of Maharashtra (1970) 3 SCC 7 ....................................... 4
25. Emperor v. Tohfa AIR 1933 All 759 .............................................................................. 4
26. Emperor v. Abdul Hamim, AIR 1942 All 74 .................................................................. 5
27. Fenwick v. Schmalz (1868) LR 3 CP 313 p. 316 ........................................................... 7
28. Gangadhar Behera v State of Orissa (2002) 8 SCC 381 ................................................ 6
29. Gaya Prasad Ram lal v State of Maharashtra AIR 1971 SC 1112 .............................11
30. Girish Saika v. State of Assam, 1993 CrLJ 3808 ( Gau) ............................................ 7,9
31. Gurdatta Mal v State of Uttar Pradesh AIR 1965 SC 257 ....................................... 3,12
 32. Gurmit Singh v State of Punjab AIR 2001 SC 2977 .................................................... 2
33. H Parakh v King-Emperor AIR 1926 Oudh 202 .............................................................5
34. Harish Kumar v. State of M.P. 1996 CrLJ 3511 (SC).................................................... 6
35. In State of U.P. v. Niyamat, AIR 1987 SC 1652 ............................................................. 5
36. Jagtar Singh v State of Punjab AIR 1993 SC 970 .......................................................... 8
37. Jai Devi v. State of Punjab AIR 1963 SC 612 (617) ...................................................... 5
38. James Martin v State of Kerala (2004) 2 SCC 203 ..................................................... 10
39. Jamuna Singh v. State of Bihar, AIR 1967 SC 553 ......................................................10
40. Jasobant Narayan Mohapatra v. State of Orissa, 2009 CrLJ 1043 (Ori) .................... 10
41. Jogendra Nath Mukhejee, (1897) 24 Cal. 320 ................................................................ 5
42. Joginder Ahir v State of Bihar (1971) 3 SCC 449.........................................................13
43. Karali Bauri v. Subhas Das Musib, 1983 CrLJ 1474 (Cal) ............................................. 8
44. Khora Ghasi, 1978 CrLJ 1305 ( Orissa) ....................................................................... 10
45. Krishnan v State of Tamil Nadu AIR 2006 SC 3037......................................................3
46. Kulwant Singh v State of Punjab (2004) 9 SCC 257 ...................................................... 2
47. Lakshmi, (1886) Unrep Cr C 303 .................................................................................. 12
48. Lala Ram v. Hari Ram, AIR 1970 SC 1093 .................................................................... 6
49. Laxman Sahu v State of Orissa AIR 1988 SC 83 ........................................................... 4
50. Laxman Singh v Poonam Singh AIR 2003 SC 3204 ....................................................... 8
51. Lonkaran Multanchand v Emperor AIR 1947 Nag 60 ................................................. 15
52. Mahbub Shah v Emperor (1945) 46 Cr LJ 689 ............................................................ 13
53. Matu Ram v Emperor AIR 1924 Lah 238 ..................................................................... 14
54. Mohan Singh v State of Punjab AIR 1963 SC 174 ....................................................... 11
55. Mohan Singh v State of Punjab AIR 1975 SC 2161 .................................................... 11
56. Mohd Khalid v State of West Bengal (2002) 7 SCC 334.................................................2
57. Mohd Ramzani v State of Delhi AIR 1980 SC 1341 ...................................................... 3
58. Mohinder Pal Jolly v State of Punjab AIR 1979 SC 577 ............................................. 11
59. Munshi Ram v Delhi Administration AIR 1968 SC 702 ................................................. 9
60. Muthammal v. Maruthatlal, 1981 CrLJ 833: 1981 LW (Cr) 80 ................................... 10
61. Nagarathinam v State (2006) 9 SCC 57 ......................................................................... 9
62. Nakul Barik v. State, AIR 1967 Ori 1 : 1967 CrLJ 97.....................................................1
63. Onkarnath Singh v State of Uttar Pradesh AIR 1974 SC 1550 ..................................... 8
64. Pandurang v State of Hyderabad AIR 1955 SC 216 .................................................... 9
65. Parasa Raja Manikyala Rao v State of Andhra Pradesh AIR 2004 SC 132 ..............13
 g

66. Partap v State of Uttar Pradesh AIR 1976 SC 966 ...................................................... 3

67. Parvathi v. State of Punjab, 1968 SCD 293 ................................................................. 6
68. Patreswar v. State of Assam, 1989 CrLJ 196 (Gau) ..................................................... 9
69. Phudki v State AIR 1955 All 104 ................................................................................. 14
70. Puran Singh v State of Punjab AIR 1975 SC 1674 ...................................................... 6
71. Purshotam Das v State of Punjab AIR 1965 Punj 264 ................................................. 14
72. Purushothaman v. State of Kerala, 1989 CrLJ NOC 184 (Ker) .................................... 9
73. Raj Pal v State of Haryana (2006) 9 SCC 678............................................................... 3
74. Raja Ra, 1977 CrLJ NOC 85 (ALL) .............................................................................. 8
75. Raja Sekharan v State Represented by Inspector of Police AIR 2002 SC 3667 ............ 3
76. Ram Dahin Singh v State of Bihar (1970) 3 SCC 26 ...................................................... 5
77. Ram Ji Lal v. St. of Rajasthan, 1990 CrLJ 392 (RAJ) ....................................................7
78. Ram Pravesh (1944) 23 Pat 328 ..................................................................................... 6
79. Ram Pyare v Prem Shankar AIR 2009 SC 552.............................................................. 8
80. Ram Singh v. State of M.P., 1973 Jab LJ 971................................................................. 1
81. Ramabatar Agarwalla v. State of Orissa, 1983 CrLJ 122(Ori).....................................12
82. Ramnath v. Emperor, AIR 1925 All..............................................................................13
83. Re Lakshmi Narayana Aiyer, AIR 1918 Mad 738 ....................................................... 10
84. Rizan v State of Chhattisgarh , through the Chief Secretary, Government of
Chhattisgarh, Raipur,Chhattisgarh, (2003) 2 SCC 661.................................................3
85. S.C. Kurson v. St. of Gujrat (1969) 3 SCC 2003 ...........................................................6
86. Salim Zia v State of Uttar Pradesh AIR 1979 SC 391 .................................................. 2
87. Satya Narain Yadav v Gajanand & Anr AIR 2008 SC 3284 ........................................ 4
88. Sawan Seth v. Emperor, AIR 1933 Pat 144 ..................................................................5
89. Scaria @ Thankan v State of Kerala AIR 1995 SC 2342, ............................................ 3
90. Deo Narain v State of Uttar Pradesh AIR 1973 SC 473 .............................................. 4
91. Shri Ram v. State of U.P., AIR 1975 SC 175 ............................................................... 12
92. Shrilal v. State of MP., AIR 1953 MP 155 ................................................................... 11
93. Shriram v State of Madhya Pradesh AIR 2004 SC 491 ............................................... 9
94. State of Bihar v Nathu Pandey AIR 1970 SC 27 .........................................................13
95. State of Madhya Pradesh v Ramesh (2005) 9 SCC 705 ............................................... 8
96. State of Orrisa v. Chakradhar Behera, AIR 1964 Ori 262 ............................................ 2
97. State of U.P. v. Niyamat, AIR 1987 SC 1652..............................................................1,4
98. State of U.P. v. Ram Sanehi, 1969 CrLJ 952................................................................ 2
 h

99. State of Uttar Pradesh v Chatur Singh (2005) 13 SCC 360 .........................................2
100. State of Uttar Pradesh v Gajey Singh (2009) 11 SCC 414 ........................................... 2
101. State of Uttar Pradesh v Ram Swarup AIR 1974 SC 1570 .......................................... 4
102. State of Uttar Pradesh v Rohan Singh (1996) Cr LJ 2884 ..........................................13
103. State of Uttar Pradesh v Suresh Chand Shukla AIR 1991 SC 968 .............................13
104. Subramani v State of Tamil Nadu AIR 2002 SC 2980… ....................................... 12,13
105. Sukhdev Singh v State of Punjab (1997) SCC (Cr) 831 .............................................. 11
106. Suresh v. State of U.P. AIR 2001 SC 1344 .................................................................12
107. Suryanarayana v Thota Simhadri AIR 1934 Mad 664 (2)… ...................................... 14
108. Tara Singh v State of Madhya Pradesh AIR 1981 SC 950............................................4
109. Thakur Mahato v State of Bihar (1972) Cr LJ 835 (Pat) ............................................... 2
110. Thakur Prasad v Emperor AIR 1936 Pat 74 ...............................................................14
111. Tunda, 51 CrLJ 402: AIR 1950 ALL 95 ........................................................................8
112. Vijayee Singh v State of Uttar Pradesh AIR 1990 SC 1459 ........................................ 3
113. VishvasAba Kurane v State of Maharashtra AIR 1978 SC 414 ................................... 4
114. Vithal In karan i More v State of Maharashtra AIR 2002 SC 2715............................13
115. Yogendra Morarji v State of Gujarat AIR 1980 SC 660 ............................................... 3
BOOKS:
1. Field, C.D., Expert Evidence: Medical and Non-Medical, (4th Ed 2007)
2. Gaur, KD Firearms ,Forensic Ballistics, Forensic Chemistry and Criminal
Jurisprudence, (2nd Ed 1989)
3. Gaur, KD, Criminal Law: Cases and Materials, (6th Ed. 2009)
4. Gupte and Dighe, Criminal Manual, (7th Ed. 2007)
5. Harris, Criminal Law, (22nd Ed. 2000)
6. Hill, McGraw, Criminal Investigation, (4th Ed. 2004)
7. I, III, IV Nelson R. A. Indian Penal Code, 10th Ed. (2008)
8. I, Kathuria, R.P. Supreme Court on Criminal Law, 1950-2002, ( 6th Ed. 2002)
9. II, Mitra, B.B., Code of Criminal Procedure, 1973 (20th ed. 2006)
10. II, Nandi, Criminal Ready Referencer, ( 2nd Ed. 2007)
11. II, Princep‟s Commentary on the Code of Criminal Procedure, 1973 (18th ed. 2005)
12. III, Sarvaria, SK, Indian Penal Code, (10th Ed. 2008)
13. James, Jason, Forensic Medicine: Clinical and Pathological Aspects, (1st Ed. 2003)
14. Kelkar, R.V. Criminal Procedure, (5th Ed. 2011)
15. Lal, Batuk, The Law of Evidence, (18th Ed. 2010)
 i

16. Lyons, Medical Jurisprudence & Toxicology, (11th Ed. 2005)

17. Modi‟s Medical Jurisprudence and Toxicology, (23rd Ed. 2010)
18. Parikh, C. K, Textbook of Medical Jurisprudence, Forensic Medicine & Toxicology,
(6th Ed. 2002)
19. Ratanlal and Dhirajlal, The Indian Penal Code, 33rd Ed. (2011)
20. Ratanlal and Dhirajlal, The Law of Evidence, 22nd Ed. (2006)
21. Sarkar, Law of Evidence, (13th Ed,1990)
22. Saxena & Gaur, Arms and Explosives, (10th Ed. 2012)
23. Sharma, B.R., Forensic Science in Criminal Investigation & Trials, (4th Ed. 2003)
24. Tyagi, Surendra Prakash, Criminal Trial (2nd ed. 1996)
25. Varshi, H.P. Criminal Trial and Judgment, (3rd ed. 1981)
STATUTES:
1. The Code of Criminal Procedure, 1973 (Act 2 of 1973)
2. The Indian Evidence Act, 1872 (Act 18 of 1872)
3. The Indian Penal Code, 1860 (Act 45 of 1860)
 STATEMENT OF JURISDICTION

The Defence submits that the Honb’le Court of Sessions, Kolkata has Jurisdiction to try the
instant matter under Section 209 r/w Section 177 of the Code of Criminal Procedure, 1973.
 STATEMENT OF FACTS

• Abhishek and Angad are doing a master’s degree in political science & administration from the
presidency college in Kolkata, capital city of West Bengal. Both belong to the Dalit community.
Abhishek contested the college union election and was elected as its president in 2015.
• Tanya and Natasha are students of Final Year of B.A. Political Science & Administration. They
are also Members of the Union. They complained to Abhishek that two boys in particular were
teasing them regularly. One evening when they were standing at the bus stop; the two boys came
in a motorcycle and started teasing them. Abhishek threatened them with dire action. When a
few people among the public started abusing them they left.
• The incident repeated on March 30, 2016. Abhishek and Angad were furious and they started
pelting stones at them and they hurriedly drove away by showing sign of pistol by their hands.
In the evening after college hours, a police officer accosts Abhishek and Angad and threatens
them saying “keep your trap shut and mind your own business otherwise i will have to show you
my stuff”. He also said “i know your kind of people who support anti-nationals, i have dealt with
them”. Abhishek discussed with his friend Dushyant who is a local leader of the political party,
to which the union is affiliated, who said “iski yeh himmat, salley ko mar dalo, kam se kam hamare
neta toh khush honge”
• After a week on April 7, 2016 the boys came again to tease the girls near the bus stop. Abhishek
and Angad started pelting stones at the bikers. The people standing at the bus stop started running
in panic. Suddenly the inspector comes from behind and slaps Abhishek and violently threatens
him saying “i will teach you a lesson you will never forget. I have taught this lesson to many”.
During the fracas, the inspector puts his hand on his belt showing the gun holster.
• Angad shouted “he is going to shoot you, quickly escape”. Abhishek in a fit of rage runs and
takes a rod that was lying down in the auto garage next to the bus stop and throws it at the
inspector. The inspector not expecting this gets hit on the head and falls awkwardly on the
pavement and gets hit on the head again by the stump of a tree. Inspector was declared dead.
Abhishek was arrested along with his friend Angad and charged with manslaughter of a police
officer on duty.
 STATEMENT OF CHARGES

CHARGE 1

Abhishek Harijan– has been charged under Section 186, 304 read with Section 34 the
Indian Penal Code, 1860 for the manslaughter of a police officer on duty.

CHARGE 2

Angad Harijan- has been charged under Section 186,107, 304 read with Section 34 the Indian
Penal Code, 1860 for the manslaughter of a police officer on duty.

CHARGE 3

Dushyant - has been charged under Section 107, 304 read with Section 34 the Indian
Penal Code, 1860 for the manslaughter of a police officer on duty.
 SUMMARY OF ARGUMENTS

A. THAT THE ACCUSED AND THE CO-ACCUSED SHOULD BE CHARGED UNDER 304 OF
IPC.

It is humbly submitted that the deceased caused reasonable apprehension in the minds of the
accused and the co-accused that he could cause them grievous hurt or even death on the day when
the act took place by trying to take out his gun and also few days before that when he came to meet
them and gave them a warning. While the deceased beat the accused, he was trying to take out his
gun; Abhishek acted in private defense and threw a metal rod towards the deceased to protect
himself and his friend Angad. The hitting of the rod on the head of the deceased and causing a fatal
injury was a mere accident and misfortune. The accused never intended to do so nor had the
knowledge that it would result in the death of the deceased. The accused acted in private defense
and thus pleads not guilty.

B. THAT THE CO-ACCUSED AIDED THE ACCUSED WITH HIS ACT AND THUS CAUSED
ABETMENT.

It is humbly submitted that the moment the act took place nothing was premeditated about it, it
was a sudden fight where the deceased beat the accused in his head and then the accused acted in
private defense against him. The co-accused Angad never said anything which would lead to
instigation which is an essential element of Abetment under S.186 of IPC. There was no intention
of any of them for the death of the deceased. Moreover no conspiracy was made against the death
of the deceased which is also an element of Abetment and thus the accused and co- accused should
not be held liable for Abetment.

C. THAT THE ACCUSED AND CO-ACCUSED OBSTRUCTED A PUBLIC SERVANT WHILE HE WAS
DISCHARGING HIS LAWFUL DUTIES.

It is humbly submitted that the public servant, Amit Chaudhary was intoxicated at the time of the
act as shown in the forensic reports, was not under the color of his office and also his actions
were jot justifiable by law. Public servants are restricted to beat citizens and here in this present
matter Amit Chaudhary did it and hence this indicated that he was discharging unlawful duty.
Stopping a person who is beating you for no reason is not obstruction especially when that
person is a public servant who is not doing his lawful duty. Therefore Abhishek and Angad
should not be punished under S.186 of IPC.
 ARGUMENTS ADVANCED

A. THAT THE ACCUSED CAN BE CHARGED UNDER S.304 OF IPC FOR HIS ACT.

It is humbly submitted before this Hon’ble Court that the act of the accused was one in Private
defense under S. 99 of the Indian Penal Code and thus he should not be held liable for culpable
homicide. The fact that there was reasonable apprehension of death to the accused lead him to
throw the metal rod towards the police inspector which he didn’t even aim at the head nor did he
intended for his death and moreover the police officer was intoxicated and was not discharging his
duty as “justifiable by law”. He was also not in his uniform which is considered to be “the color of
his office‟ at the time of the act and therefore the accused had all the right of private defense
against him. The words “not strictly justifiable by law” are not intended to cure the want of
jurisdiction but only an erroneous exercise of it.

When the error affects the procedure rather than the principle it would be covered by the clause.1
The first sentence of section 99 makes it clear that section 99 is only attracted when there is
reasonable apprehension of death or grievous hurt. So, when a few constables after illegally
arresting a person was carrying him towards the police station and the villagers with lathi and
pharsas and spears follow them with the view to secure his release and to deter them one constable
fired shots (although in air) there comes in, the reasonable apprehension of death and grievous
hurt. If in this backdrop the villagers forcibly extricate the arrested innocent victim and in the
process one person accompanying the arresting party dies, the accused can invoke the aid of right
of private defense.2

1. THERE WAS REASONABLE APPREHENSION ON THE PART OF THE INSPECTOR.

According to Section 99, IPC, there is right of private defense against an act which reasonably
cause the apprehension of death or grievous hurt, if done or attempted to be done by a public
servant even in good faith under color of his office, though that act may not be strictly justifiable
by law.3 The words “an act which does not reasonably cause the apprehension of death or
grevious hurt” show that even the police officer’s acts, does not have the immunity when extended
to a reasonable cause of apprehension of death or of grevious hurt done by him. So, if the police

1
Ram Singh v. State of M.P.,1973 Jab LJ 971
2
State of U.P. v. Niyamat, AIR 1987 SC 1752 : 1987 CrLJ 1881 : (1987) 2 SCJ 225 : (1987) 3 SCC 434 : 1987 Cr App R
(SC) 119
3
Nakul Barik v. State, AIR 1967 Ori 1 : 1967 CrLJ 97
 officer whips out his gun and points it to the accused, he must have entertained a reasonable
apprehension of death and in that situation their assault on the police party would be protected by
their right of private defense of person. 4 Protection by acts of public authorities referred to in
section 99, Penal Code, must mean such protection as can preserve the status quo.5As soon as
reasonable apprehension of danger arises, the right of private defense may be exercised.6 He must
apprehend some physical violence from his opponent and it must be reasonably apprehensive of
death or grievous hurt.7The court on an objective test and on the facts and circumstances of each
case must arrive at the conclusion that the situation was such as was likely to reasonably cause
apprehension of death or grievous hurt.8

The accused is not required to establish it beyond reasonable doubt. 9It would be sufficient if he
merely makes out a prima facie case. It is also not necessary to lead evidence to support his plea
if the evidence on record and circumstances themselves show or prove the plea.10His burden stands
discharged by showing preponderance of probabilities11 in favor of the plea on the basis of the
evidence, emanating from either prosecution or defense, on record.12 The accused may establish
or sustain his plea on the prosecution evidence itself 13 recorded under the Code of Criminal
Procedure 1973.14The court has to examine probabilities in appreciating his plea.15He is, therefore,
entitled to be acquitted if upon a consideration of the evidence as a whole, including the evidence
given in support of the plea of the general exception, a reasonable doubt is created in the mind of
the court about the guilt of the accused.16 Evidence as a whole must be considered whether it comes

4
State of U.P. v. Ram Sanehi, 1969 CrLJ 952 (All) : 1968 All WR (HC) 39 : 1968 All Cr R 34.
5
State of Orissa v. Chakradhar Behera AIR 1964 Ori 262 : (1964) 2 CrLJ 696.
6
Mohd Khalid v. State of West Bengal (2002) 7 SCC 334, (2002) SCC (Cr) 1734.
7
Kulwant Singh v. State of Punjab (2004) 9 SCC 257, (2004) SCC (Cr) 1441; State of Uttar Pradesh v. Gajev Singh (2009)
11 SCC 414, Darshan Singh v. State of Punjab AIR 2010 SC 1212, (2010) Cr LJ 1393 (SC), (2010) 2 SCC 333; Arjun v.
State of Maharashtra (2012) 5 Scale 52, AIR 2012 SC 2181,2012 (5) SCC 530.
8
State of Uttar Pradesh v. Chatur Singh (2005) 13 SCC 360, (2006) 2 SCC (Cri) 245.
9
Dharminder v. State of Himachal Pradesh AIR 2002 SC 3097, (2002) 7 SCC 488.
10
Thakur Mahato v. State of Bihar (1972) Cr LJ 835 (Pat).
11
Gurmit Singh v. State of Punjab AIR 2001 SC 2977, (2001) 9 SCC 681; Arun v. State of Maharashtra (2009) 4 SCC 615,
(2009) CrLJ 2065 (SC).
12
Salim Zia v. State of Uttar Pradesh AIR 1979 SC 391, (1979) Cr LJ 323 (SC).
13
Rizan v. State of Chhattisgarh, through the Chief Secretary, Government of Chhattisgarh, Raipur, Chhattisgarh, (2003) 2
SCC 661, (2003) Cr LJ 1226 (SC); Krishnan v. State of Tamil Nadu AIR 2006 SC 3037,(2006) 11 SCC 304,(2006) Cr LJ
3907 (SC).
14
Yogendra Morarji v. State of Gujarat AIR 1980 SC 660, (1980) 2 SCC 218, (1980) Cr LJ 459 (SC).
15
Abid v. State of Uttar Pradesh (2009) 14 SCC 710, AIR 1998 SC 2381.
16
Partap v. State of Uttar Pradesh AIR 1976 SC 966; [1976] 1 SCR 757, (1976) SCC (Cr) 303; Buta Singh v. State of
Punjab AIR 1991 SC 1316, (1991) 2 SCC 612, (1991) Cr LJ 1464 (SC).
 from the side of the prosecution or the defense,17 to determine whether the infliction or the injuries
for which an accused is prosecuted are either proved by a “balance of probabilities” to have been
inflicted in the course of exercise of the right of private defense or even if the accused fails to do
that, it is sufficient to make the prosecution case doubtful on an ingredient of the offence18 such as
the existence of mens rea. 19 The right of self-defense when raised cannot be dismissed
summarily.20 It is a substantial and arguable point of law.21 It cannot be based on surmises and
speculations22 and while considering it the entire incident must be examined with care and viewed
in proper setting.23 It is not proper for the court to ignore the evidence of defence witness which
had substantiated the accused plea of private defence and reverse the verdict of acquittal when two
views of the evidence are reasonably possible.24

The right of private defence of the body commences as soon as a reasonable apprehension of
danger to the body arises 25 from an attempt or threat to commit the offence though the offence
may not have been committed and it continues as long as such apprehension of danger to the body
continues.26The right of private defence is available for protection against apprehended unlawful
aggression.27 In the present matter it is clear from the fact sheet that Amit Chaudhary had grudges
against the accused and he took it out on him in an aggressive manner by beating him and by trying
to take out his gun to shoot him and thus the private defence which was exercised by accused
should be considered a valid one. The right of private defence is available only to one who is
suddenly confronted with immediate necessity of averting an impending danger not of his creation
and the necessity can be, real or apparent.28

1. ACTS WHICH ARE JUSTIFIABLE BY LAW

The word “not strictly justifiable by law” is not intended to cure the want of jurisdiction but only

17
Gurdatta Mal v. State of Uttar Pradesh AIR 1965 SC 257, (1965) 1 Cr LJ 242 (SC).
18
Mohd Ramzani v. State of Delhi AIR 1980 SC 1342, (1980) Supp SCC, (1980) Cr LJ 1010 (SC).
19
Vijayee Singh v. State of Uttar Pradesh AIR 1990 SC 1459, (1990) 3 SCC 190, (1990) Cr LJ 1510 (SC).
20
Scaria @ Thankan v. state of Kerala AIR 1995 SC 2342, (1995) Cr LJ 3990 (SC).
21
Duyanu Hariba Mail v. State of Maharashtra (1970) 3 SCC 7.
22
Rizan v. State of Chhattisgarh (2003) 2 SCC 661,(2003) Cr LJ 1226 (SC).
23
Raj Pal v. State of Haryana (2006) 9 SCC 678, (2006) 3 SCC (Cri).
24
Tara Singh v. State of Madhya Pradesh AIR 1981 SC 950, (1980) Supp SCC 466, (1981) Cr LJ 483 (SC).
25
State of Uttar Pradesh v. Ram Swarup AIR 1974 SC 1570, (1974) 4 SCC 764, (1974) Cr LJ 1035 (SC).
26
Babulal Bhagwan Khandare v. State of Maharashtra (2005) 10 SCC 404; Ram Pal v. State of Haryana (2006) 9 SCC 678,
(2006) 3 SCC (Cri) 361.
27
Deo Narain v. State of Uttar Pradesh AIR 1973 SC 473, (1973) Cr LJ 677 (SC); Kulwant Singh v. State of Punjab (2004)
9 SCC 257, (2004) SCC (Cr) 1441.
28
Laxman Sahu v. State of Orissa AIR 1988 SC 83, (1986) Supp SCC 555.
 an erroneous exercise of it. 29 The Accused in the present case had the circumstance for
apprehension that either death or grievous hurt would be caused to him. Right of Defense pleaded
by Abhishek is a valid one and not on ground of surmises and speculation.30

In a case the Allahabad High Court impressed that it is not only proper and advisable but really
necessary that when police officer act in the discharge of their official duty, they should be clothed
in their uniform. If they fail to do so, they cannot validly seek the protection to the court.
Consequently where a Police Officer having no right or authority to arrest a person seeks to arrest
him without being in uniform, such person is entitled to a right of private defense and his right is
not taken away by section 99, I.P.C.31 in the present case the police inspector Amit Chaudhary was
not in his uniform at the time of the incident, hence there exists the right of private defence with
the accused.

There is a marked difference between the acts which are wholly illegal in one hand & the act which
may not be strictly Justifiable by law. The Law does not protect the illegal acts & the acts
committed by a public servant without jurisdiction. Act not strictly justifiable by law, does not
cover an act which is wholly illegal & totally without jurisdiction. Section 99 applies to acts where
jurisdiction is wrongly exercised.32 When a police party having no jurisdiction to go to a village to
recover a lady to restore her to her father, goes to the village, the villagers can use force to repel
them, the accused persons are not guilty under IPC.33

If the act of public servant is ultra vires the right of private defense may be exercised against him.34

1. LAW INTENDS TO PROVIDE RIGHT TO PRIVATE DEFENCE TO EVERY PERSON.

The law does not intend that a person must run away to have recourse to the protection of public
authorities when he is attacked instead of defending himself.35 In the leading Supreme Court case
on the point36 to is stated: in a well ordered civilized society it is generally assumed that the state
would take care of the person and that normally it is the function of the state to afford protection
to such persons. This is however, does not mean that a person suddenly called upon the face an

29
1969 Mad LW Cr 242 (Mad). In State of U.P. v. Niyamat, AIR 1987 SC 1652 : (1987) 3 SCC 434 : 1987 CrLJ 1881.
30
Bihari Rai v. State of Bihar, 2009 CrLJ 340 (SC) : AIR 2009 SC 18.
31
Emperor v. Abdul Hamim, AIR 1942 All 74 : 43 CrLJ 338 : 1942 All LJ 32 : ILR 1942 All 35 : 198 IC 264
32
Sawan Seth v. Emperor, AIR 1933 Pat 144 : 34 CrLJ 726; 144 IC 178.
33
Ram Ji Lal v. St. Of Rajasthan, 1990 CrLJ 392 ( RAJ)
34
Jogendra Nath Mukherjee, (1897) 24 Cal. 320; Tulsi Ram, (1888) 13Bom 168.
35
Alingal Kunhinayam, (1905) 23 Mad 454.
36
Jai Devi v. State of Punjab AIR 1963 SC 612 (617) : (1963) 1 CrLJ 495.
 assault must run away and thus protect him. He is entitled to resist the attack and defend himself.
In other words where an individual citizen is faced with a danger and immediate aid from the
state machinery is not readily available; the individual is entitled to protect himself. If the right of
private defence has already arisen, it is not expected that a person entitled to exercise it should
have recourse to the protection of the public authorities. He is entitled in view of the immediate
danger of injury, to defend it by exercising his right instead of having recourse to the public
authorities.37

In a further case before SC there was direct confrontation of accused with the complaint party in
which accused seeing danger to his life and lives of member of his family fired an only shot in
which the deceased was killed. It was held that the right of private defense was not exceeded and
the accused was entitled to the acquittal on ground of right of private defense of person.38

Looking to the plain language of Section 100 of I.P.C. it appears that, the question whether a person
has a right of private defence in a given case depends upon manner in and the ferocity with which
he is attacked and the apprehension in his mind resulting from such an attack and not on the
question whether, he was armed or otherwise. If in view of the manner of attack he has a genuine
apprehension that the person assaulting him would either cause his death or grievous hurt to him
he would be justify in causing the death of his assailant in exercise of the right of private defense
irrespective of the fact whether assailant was armed or not.39

1. THE DEATH OF THE PUBLIC SERVANT WAS AN ACCIDENT UNDER S.80 OF THE INDIAN
PENAL CODE
This section exempts the doer of an innocent or lawful act in an innocent or lawful manner or
without any criminal intention or knowledge from any unforeseen evil result that may ensue from
accident or misfortune. The act is done accidentally or by misfortune, it is done without any
criminal intention or knowledge and accident occurs while doing a lawful act in a lawful manner
and by lawful means, wherein due care and caution is exercised. So in order to attract the protection
under Section 80 aforesaid circumstances must be shown to have existed at the time of the incident:
(1) That the act in question was without any criminal intention or knowledge;

(2) That the act was being done in a lawful manner by lawful means; and

37
Abdul Hadi v. Emperor, AIR 1934 All 829.
38
Harish Kumar v. State of M.P. 1996 CrLJ 3511 (SC) : (1996) 9 SCC 667.
39
B.S.Suryada v. State of Gujarat, 1972CrLJ 1574 (1577) Guj.
 (3) That the act was being done with proper care or caution.40

An effect is said to be accidental when the act by which it is caused is not done with intention of
causing it and when its occurrence as a consequence of such act is not so probable that a person of
ordinary prudence, ought, under the circumstances in which it is done, to take reasonable
precautions against it 41 . An accident is something that happens out of the ordinary course of
things.42 The idea of something fortuitous and unexpected is involved in “accident”. In offences
for which a particular mental element is required is that defencing that although the defendant did
the acts which would be criminal if done with intent, they were done by the accident or by
inadvertence so that the mental element was absent. 43 The accused was attacked when he was
asleep at night by his brother who tried to strangulate him, apprehending imminent death, the
accused aimed a blow at his assailant brother with a piece of bamboo on which he could lay a hand
and the blow accidently struck the head of his intervening father as a result of which he ultimately
died. It was held that, the accused exercised his lawful right of self-defence and the blow felt on
the head of his father by accident and misfortune and he was fully protected by section 80 and 106
and his conviction under section 304 was set aside.44

As laid down in Cross and Jones45: “Accident” is a word which has several shades of meaning but,
when we speak of the defence of accident in a case in which the conscious conduct of the accused
constitute the actus reus of the crime charged, the allegation always is that the accused did not
intend to produce the prohibited consequences. Abhishek who was conscious of and in control; of
his bodily movements and aware of all relevant circumstances did not intend or foresee that his
conduct would have the prohibited consequences; in this case he should be provided defence of
accident. In a case the accused party was in possession and grew crop thereon, the prosecution
party came to harvest the crop. The accused came over the land with a loaded gun which
accidentally fired and caused death to one who folded hands was entreating them to stop the
scramble.

The accused is given the benefit of Section 80 of IPC and the High Court held further that the fact

40
Atmendra v. State of Karnataka 1998 CrLJ 2838 : AIR 1998 SC 1985
41
STEPHENS’S digest of Criminal Law, 9th Edn. Art. 316
42
Fenwick v. Schmalz (1968) LR 3 CP 313 p.316
43
Halsburys law of England, 4th Edn; Vo,11.
44
Girish Saikai v.Subas Das, 1983 CrLJ 1475(Cal) : 1983(2) Crimes 626 : 87 Cal WN 844.
45
CROSS & JONES, Introduction to Criminal Law, 9th Edn.
 that gun was not intentionally used, alone will not bring the case within the exception. It has to be
established that it happened in the course of doing a lawful act in a lawful manner by lawful means
and with proper care and caution. Coming upon the land with a gun when the harvested paddy was
attempted to be removed was not unlawful.46 An injury is said to be accidentally caused whenever
it is neither willfully nor negligently caused.47Where the accused fired a shot at his assailant who
escaped but four other people were injured and one of them unfortunately expired, it was held that
the accused was not liable for the fatal injury to an innocent person as his case fell within the scope
of Section 80 read with Section 96 and 100 I.P.C.48

Thus, when accused and victim are engaged in a friendly wrestling bout, but during the wrestling
the victim receives an injury resulting in his death, the accused is protected by section 80 I.P.C.49
In a case a lady with the child in her hand intervened, apparently unexpectedly, in the course of a
scuffle between accused No. 2 and his party on the one hand and her husband and his brother on
the other hand. It was about the middle of the night that this took place and blow which was aimed
by accused No. 2 at the husband of the woman, whom he intended to attack, fell unknowingly on
the child. It was held the assailant only intended to cause simple hurt to the husband of the lady
and he was held liable not of culpable homicide but of simple hurt50. Similarly, where the accused
inflicted a single blow by the stick in his self – defence but blow accidentally struck on intervening
father’s head who succumbed to injury next day. It was held that the accused had committed no
offence at all and was fully protected under section 80. In this case two brothers were quarreling
as a younger brother had attacked the accused (the elder brother) while he was sleeping 51, not to
deprive a man of the protection which is given to him, because the circumstances under which the
act was done were such as to negative the existence of mens rea.

When only the Actus Reus amounts to death of a victim; accident may be a valid defence. Then as
laid down by HALSBURY, evidence of criminal intention is material and evidence of similar facts
may be adduced to rebut a defence that the event constituting the basis of offence charged occurred
without the necessary criminal intention, for example by accident52. Where death is caused by way

46
Karali Bauri v. Subhas Das Musib, 1983 CrLJ 1474 (Cal) : (1983) 2 Crimes 626 : 87 Cal WN 844.
47
10th Parl Rep 16.
48
Raja Ra, 1977 CrLJ NOC 85 (ALL) ; see also Khora Ghasi, 1978 CrLJ 1305 ( Orissa) under S. 79 ante.
49
Tunda, 51 CrLJ 402: AIR 1950 ALL 95.
50
Chathur Nath v. Emperor AIR 1920 Bom 224: 21 CrLJ 85 : ( 1919) 21 Bom LR 1101
51
Girish Saika v. State of Assam, 1993 CrLJ 3808 ( Gau)
52
HALSBURY law Engaland, 4th Edn. Vol. 11, para 377, p. 209
 of accident or misfortune a result of involuntary act, in state of sleep, without criminal intention or
motive, it cannot be said that any offence is committed, unless prosecution proves the guilt of the
accused beyond reasonable doubt.53

B. THAT THE CO-ACCUSED ACTUALLY AIDED THE CAUSE OF THE DEATH OF THE DECEASED WITH COMMON
INTENTION OR NOT.

It is humbly submitted that in the present case the co accused did not have any intention to cause
the death of the deceased. Their words do not amount to abatement under S.107 of IPC. Moreover
the act of the accused was that in the right of private defense and not with the intention of causing
death of the deceased. In a case where the accused only had the intention that deserving students
should not suffer on the account of the money, first of the two accused, who was the practical
examiner and had suggested the students who had approached him for advice to meet the second
accused, his suggestion would not amount to abetment of the commission of the offence of given
illegal gratification by students to the second accused.54 In order to proceed against a person for
criminal offence under section 107, prosecution must prove the element of mens rea.55 Negligence
or carelessness or the facilitation cannot be termed to be abetment so as to punish the guilty as per
the provisions of penal law.56 In order to constitute abetment, the abettor must be shown to have
“intentionally” aided to commission of the crime. The fact that Dushyant and Angad had no
intention of causing death of the deceased has clearly been given in the call recordings provided
as evidence in the fact sheet, and thus they cannot be held liable for Abetment.

Mere proof that the crime charged could not have been committed without involvement or
interposition of the alleged abettor is not enough compliance with the requirement of section
107. It is not enough that an act on the part of the alleged abettor happens to facilitate the
commission of the crime. Intentional aiding and therefore active complicity is the gist of the
offence of abetment under the third paragraph of section 107.57

By mere association of the accused person in the case, who are charged for an offence of abetment

53
Patreswar v. Stae of Assam, 1989 CrLJ 196 (Gau)
54
Purushothaman v. State of Kerala, 1989 CrLJ NOC 184 (Ker)
55
Jamuna Singh v. State of Bihar, AIR 1967 SC 553
56
B. Ammu v. State of T.N., 2009 CrLJ 866 (Mdr)
57
Shri Ram v. State of U.P., AIR 1975 SC 175: 1975 CrLJ 240 (SC) quoted in Jasobant Narayan Mohapatra v. State of
Orissa, 2009 CrLJ 1043 (Ori), Muthammal v. Maruthatlal, 1981 CrLJ 833: 1981 LW (Cr) 80: Mad LJ (Cr) 287.
 of the principal offender, in the absence of any material to show that there was an instigation by
the petitioner or that there was any intention either in aiding or in commission of the offence
committed by the first accused, it cannot be said that they have committed an offence of abetment.

1. THAT WHEN THE ACT LACKS ACTIVE STIMULATION IT DOES NOT AMOUNT TO
ABETMENT.

The word “instigates” in section 107. I.P.C. does not merely mean the placing of temptation to do
a forbidden thing, but the actively stimulating a person to do it.58 To ask a person as a mere threat
to fire a gun, without intending that he should really fire it, is not to instigate him to fire the
gun. The threat would become only instigation if it is found that in the event of threat having no
effect, the gun should in fact be fired.59

The accused person had some quarrel with the deceased as the latter’s dog had barked upon one of
them while he was passing through that lane at night. The quarrel took an ugly turn when one
accused (father) instigated other two accused (his sons) to teach deceased a lesson, whereupon the
deceased was stabbed with a knife and the injury proved very fatal. On being prosecuted, the trial
court convicted them under section 302 r/w 107, I.P.C., but on the appeal to high court, it was
found that prosecution story was not reliable as complainants were armed with deadly weapon
whereas accused was unarmed, and injuries received by accused could not be explained by the
prosecution, and even deceased’s wife could not explain as to what weapons were in the possession
of the accused person. Therefore giving the benefit of doubt, the conviction of the accused was set
aside.60

1. THAT MERE PRESENCE OF A PERSON DOES NOT DENOTE INSTIGATION FOR ABETMENT.

Mere presence at the commission of a crime cannot amount to intentional aid unless it was intended
to have that effect. To be present and aware that an offence is about to be committed does not
constitute abetment, unless the person thus present holds some position of rank or influence such
that his countenancing which takes place may, under the circumstances, be held as a direct
encouragement. In order to amount to abetment within the meaning of clause 3 of section 107 of

58
Re Lakshmi Narayana Aiyer, AIR 1918 Mad 738: 19 CrLJ 29.
59
Shrilal v. State of MP., AIR 1953 MP 155: 1953 CrLJ 29.
60
Chand Basha v. State, 1999 CrLJ (AP) 3441., Lakshmi, (1886) Unrep Cr C 303
 the “penal code”, the aid given must be with the intention to aid the commission of a crime. The
mere giving of aid will not make the act of abetment an offence, if the person who gave the aid did
not know that an offence was being committed or contemplated. Dushyant may have spoken a few
words but those words cannot be considered to be aiding Abhishek as the three of them had no
intention of doing so, neither any of them were aware that the act would result in the death of the
police inspector in this case. A person may, for example, invite another casually or for a friendly
purpose and that may facilitate the murder of the invitee. But unless the invitation was extended
with intent to facilitate the commission of the murder, the person inviting cannot be said to have
abetted the murder. It is not enough that an act on the part of the alleged abettor happens to facilitate
the commission of the crime. Intentional aiding and therefore, active complicity is the gist of the
offence of abetment. 61 The intention of either of the accused in this case was not to aid the
commission of a crime. The intention should be to aid an offence or to facilitate the commission
of an offence. But if the person, who lends his support, does not know, or has no reason to believe
that the act, which he is aiding or supporting, would actually take place, it cannot be said that he
intentionally aided or facilitated the doing of that act.62

1. THERE WAS NO COMMON INTENTION AMONGST THE ACCUSED AND CO-ACCUSED.

Section 34 has been enacted on the principle of joint liability in the doing of a criminal
act. The section is only a rule of evidence and does not create a substantive offence. The
distinction between “common intention” and “similar intention” may be fine but is
nonetheless a real one and if overlooked may lead to miscarriage of justice.63 Even where
the accused is liable for committing the murder of a person by doing an act or acts in
furtherance of a common intention, they would not be liable for the said acts if they had
the right of private defence 64as while exercising the right of private defence, it will not
be said that the accused were motivated by a common intention to commit a crime.65
Common intention has relevance only to the offence and not to the right of private defence. An
offence by reason of constructive liability would cease to be one if the act constituting the offence
was done in exercise of private defence.66 Where the accused has acted in exercise of their right of
private defence, it may not be said that they committed a criminal act in furtherance of a common

61
Shri ram v. State of U.P., AIR 1975 SC 175
62
Ramabatar Agarwalla v. State of Orissa, 1983 CrLJ 122(Ori)
63
Suresh vState of U.P. AIR 2001 SC 1344: (2001) 3 SCC 673: 2001 Cr LJ 1462.
64
Gurdatta Mal v State of Uttar Pradesh AIR 1965 SC 257, (1965) Cr LJ 242 (SC).
65
Subramani v State of Tamil Nadu AIR 2002 SC 2980, (2002) 7 SCC 210, 2002 SCC (Cr) 1659.
66
State of Uttar Pradesh v Suresh Chand Shukla (1991) Cr LJ 604.
 intention, because the Indian Penal Code 1860 67 makes it abundantly clear that nothing is an
offence which is done in the exercise of the right of private defence since there is no intention.68
Where there is no prior meeting of minds to form a prearranged plan, but hastily formed or rudely
conceived, each of several persons who simultaneously was part of the meeting cannot be said to
share a common intention. 69 The partition which divides the bounds between the same and a
similar intention from a common intention is often very slim, nevertheless the distinction is real
and substantial, and if overlooked will result in miscarriage of justice.70 Thus, two persons may
have the same intention to kill a man and they may both individually inflict separate fatal blows
on the deceased victim. However, where there is no prior meeting of minds to form a pre-arranged
plan, mere presence together would not mean that they shared common intention, they only shared
a similar intention.71 The several circumstances pointing to the innocence of the accused must also
be taken into consideration when considering whether the accused shared the common intention
to commit the offence.72

C. THAT THE ACTS OF THE ACCUSED AND CO-ACCUSED AMOUNTED TO OBSTRUCTING THE PUBLIC SERVANT
UNDER 186 OR NOT?

“Public Duty” means a duty in the discharge of which the State, the public or the community at
large has an interest. 73 Misconduct in public by a drunken person; whoever, in a state of
intoxication, appears in any public place, and there conducts himself in such a manner as to cause
annoyance to any person, shall be punished with simple imprisonment for a term which may extend
to twenty-four hours, or with fine which may extend to ten rupees, or with both.74 This is also
applicable for public servants, the fact that the forensic reports of Amit Chaudhary show that he
was intoxicated during the time when he tried to beat the accused at the bus stop amounts to
misconduct in public. The mere fact of a public servant believing that he was acting in the
discharge of his duties will not be sufficient to make resistance or obstruction an offence.75

67
The Indian Penal Code, 1860 S.96.
68
Subramani v State of Tamil Nadu AIR 2002 SC 2980, see State of Bihar v Nathu Pandey (1970) Cr LJ 5.
69
Joginder Ahir v State of Bihar (1971) Cr LJ 1285.
70
Dani Singh v State of Bihar 2005 SCC (Cr) 127; Parasa Raja Manikyala Rao v State of Andhra Pradesh (2003)
12 SCC 306
71
State of Uttar Pradesh v Rohan Singh (1996) Cr LJ 2884.
72
Vithal In karan i More v State of Maharashtra AIR 2002 SC 2715.
73
S. 2(b) of The Prevention of Corruption Act, 1988
74
Baroda Kanto Prananik, (1896) 1 CWN 74.
75
Ah Choung, (1931) 9 Ran 601.
 Unless the duties in the discharge of which resistance is offered are of a lawful nature, there is no
offence under the provision of the Indian Penal Code 186076 and the question whether there was a
right of private defence or not does not arise.77 in the discharge of his duties will not be sufficient
to make resistance or obstruction an offence.

1. ACTS NOT AMOUNTING TO OBSTRUCTING PUBLIC SERVANTS

The term “obstruction” in the said provision connotes some overt act in the nature of violence or
show of violence.78 Verbal protest unless strongly worded and verging on threat with likelihood
of it being carried out immediately is not obstruction.79 In the present case the fact that the police
inspector, Amit Chaudhary came from behind and hit Abhishek over his head and caught hold of
him while trying to take out his gun from his holster was enough to cause reasonable apprehension
on the mind of the accused because the accused was given threats that he could be killed twice,
once by the complainant and another by the deceased himself; so the accused acting under Private
defence and not knowing that the throwing of metal rod would cause the death of the inspector
cannot be said to have obstructed Amit Chaudhary. Moreover any public servant cannot be said to
have discharging his lawful duty when he is drunk and beating people in a public place.80

A man who runs away from arrest or does not submit to arrest may not be said to obstruct another.81

The provision does not contemplate constructive obstruction to a judicial officer in discharge of
judicial functions, even when they are of a quasi-executive character or when the proceedings
before him are in execution. 82 In the absence of evidence that the district magistrate had
empowered the mukaddam gumasta to use force to prevent contravention of order, it may not be
held that the mukaddam gumasta was acting in the discharge of his public functions or in the
execution of his duties as a public servant and in such circumstances, the offence committed is not
under the said provision of the Indian Penal Code 1860.83

76
The Indian Penal Code 1860 S.186
77
Suryanarayana v Thota Simhadri AIR 1934 Mad 664 (2).
78
Phudki v State AIR 1955 All 104 .
79
Al Choung v Emperor AIR 1932 Rang 21.
80
Matu Ram v Emperor AIR 1924 Lah 238 ..
81
Phudki v State AIR 1955 All 104.
82
Thakur Prasad v Emperor AIR 1936 Pat 74
83
Lonkaran Multanchand v Emperor AIR 1947 Nag 60
 PRAYER

Wherefore, in light of the issues raised, arguments advanced and authorities cited, may this Hon’ble
Court be pleased to:
I. Acquit, Abhishek Lepat for the manslaughter of a police officer on duty charged under
Section 186, 304 read with Section 34 of the Indian Penal Code, 1860.
II. Acquit, Angad Lepat for the manslaughter of a police officer on duty charged under Section
186,107, 304 read with Section 34 of the Indian Penal Code, 1860.
III. Acquit, Dushyant for the manslaughter of a police officer on duty charged under Section
107, 304 read with Section 34 of the Indian Penal Code, 1860.

AND/OR

Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience.

All of which is most humbly and respectfully submitted

Place: S/d

Date: COUNSEL FOR THE DEFENCE