In The Honble High Court of Purvanchal W

In The Hon’ble
High Court Of Purvanchal
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Miss Lilly Gupta……………………...……………...………………………….….Petitioner
V.
State of Purvanchal………………………………………………………………Respondent
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Written Submission On Behalf Of The Petitioner

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Counsels On Behalf Of the Petitioner
Team Code 134410P
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ALL INDIA MOOT COURT COMPETITION, 2013
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ALL INDIA MOOT COURT COMPETITION (23Th -24Th MARCH, 2013)
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TABLE OF CONTENTS
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LIST OF ABBREVIATIONS………………………………………………………………iii
INDEX OF AUTHORITIES…………………………………………………………….iv-vii
STATEMENT OF FACTS…………………………………………………………….......1-3
STATEMENT OF ISSUES......................... …………………………………………………4
WRITTEN PLEADINGS........................................................................................................5
1. Whether Writ Petition Is Maintainable?................................................................5-6
2. Whether Section 5 Of The Official Secrets Act, 1923 Constitutionally Valid?...7-8
2.1. Section 5 Of The Official Secrets Act, 1923 Constitutionally Invalid……….8-11
2.2. Section 5 Of The Official Secrets Act, 1923 is Against The Democratic
Principles……………………………………………………...………………11-13
3. Whether The Provision Under Section 5 Of The Official Secrets Act, Is Against
The Rule Of Law, And Violates The Fundamental Rights Under Article 14,
19(1)(a) and Article 21 Of The Constitution?..........................................................13
3.1. Section 5 Of the Official Secrets Act, 1923 Is Against The Rule Of Law…...14-15
3.2.Section 5 Of The Official Secrets Act, 1923 Contravenes Article 14 Of The
Constitution…………………………………………………………..……….16-17
3.3.Section 5 Of The Official Secrets Act, 1923 Violates Article 19(1)(a) Of The
Constitution…………………………………………………………………...18-20
3.4. Section 5 Of The Official Secrets Act, 1923 Violates Article 21 Of The
Constitution……………….…………………………………………………..20-22
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MEMORIAL ON BEHALF OF THE PETITIONER i
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4. What Reliefs The Petitioner Is Entitled To? ……………………………………. 23
5. PRAYER………………………………………………………………………….…24
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MEMORIAL ON BEHALF OF THE PETITIONER ii
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LIST OF ABBREVIATIONS
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Abbreviation Expansion
AIR All India Reporter
Hon‟ble Honourable
Jour Journal
OSA Official Secrets Act
Ors. Others
RTI Right To Information
SC Supreme Court
SCC Supreme Court Cases
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MEMORIAL ON BEHALF OF THE PETITIONER iii
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INDEX OF AUTHORITIES
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A. CASE LAWS.
Aeltemesh Rein, Advocate, Supreme Court of India V. Union of India And Others, AIR 1988
SC 1768………………………………………........................................................................14
A.L. Kalra V. P & E Corpn of India, Ltd., AIR 1984 SC 1361, 1367…………......................17
Bachan Singh V. State of Punjab,AIR1982 SC 1382………………………………………...15
Bhijaki Narian Dhakras V. State of M.P., AIR 1955 SC 781………………………………..10
Confederation of Ex-serviceman Associatiion V. Union of India, AIR 2006 2495 : (2006)
SCC 399……………………………………………………………………………………...21
Dinesh Trivedi, M.P. V. Union of India, (1997) 4 SCC 306………………………..………..11
Francis Coralie V. Delhi,AIR 1981 SC 746,753 : (1981) 1 SC 608…………………………21
Indian Express Newspapers (Bombay) Private Ltd. V. Union of India, AIR 1986 SC 515 :
(1985) 1 SCC 641…………………………………………………………………………….20
Indra Gandhi V. Raj Naraian, AIR 1975 SC 2299 (2369-71)………………….… 5, 8, 14, 16
John Wilkes (1770) 4 Burr 2528……………………………………………………………...15
Kesavanada Bharati V. State of Kerala, AIR 1973 SC 1461…………………………...…5, 8
Kharak Singh V. State of Uttar Pradesh, AIR 1963 SC 1295 : (1964) SCR 332………..…..22
Kumaon Mandal Vikas Nigam Ltd. V. Girja Shankar Pant, AIR 2001 SC 24……………….6
Maneka Gandhi V. Union of India, AIR 1978 SC 597,622 : (1978) 1 SCC 248…...…….…22
Makhan Singh V. State of Punjab, AIR 1964 SC 381…………….........................................21
M/S Sharma Transport REP. By Shri D.P. Sharma V. Government of A.P. & ORS, AIR 2000
SC 3689………………………………………………………………………………………16
Minerava Mills V. Union of India, AIR 1980 SC 271……………………………………….16
Namita Sharma V. Union of India Writ Petition (Civil) No. 210 of 2012……….....8, 9, 10, 13
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MEMORIAL ON BEHALF OF THE PETITIONER iv
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Naraindas V. State of Madhya Pradesh, AIR 1974 SC 1232 : (1974) 4 SCC 788…………17
People‟s Union for Civil Liberties V. Union of India, AIR 2004 SC 1442 : (2004) 2 SCC
476……………………………………………………………………………………...…….18
Printers (Mysore) Ltd. V. Assistant Commercial Tax Officer, (1994) SCC 434………...19, 20
P.V. Narasimha Rao V.State, AIR 1998 SC 2120…………………………………….……….6
Reliance Petrochemicals Ltd. V. Indian Express Newspaper Bombay (P) Ltd, AIR 1989 SC
190 : (1989) 4 SCC 592………………………………………………………………...…….21
R.L Bansal V. Union of India, AIR 1993 SC 978 : 1992 Supp (2) SCC 318………………...17
Satwan Singh V. A.P.O., AIR 1967 SC 1836 : (1967) 3 SCR 525…………...........................22
Secretary, Ministry of Information and Broadcasting, Govt. of India V. Cricket Association of
Bengal, AIR 1995 SC 1236…………………………………………………………………..19
Shiv Bahadur V. State of U.P., (1953) SCR 1188……………………………………………21
Shrilekha Vidyarthi V. State of Uttarpradesh, AIR 1991 SC 537……………………………16
Shrinivasa Rao V. J. Veeraiah, AIR 1993 SC 929…………………………………………...17
Soma Bhai V. State of Gujarat, AIR 1975 SC 1553…………………………...………………6
Som Raj V. State of Harayana,AIR 1990 SC 1176………………………………..……..14, 15
S.P.Gupta V. Union of India, AIR 1982 SC 149…………………………...…5, 11, 12, 13, 19
S.G. Jaisinghani V. Union of India and Ors. [1967] 2 SCR 703…………...…………....14, 15
State of Uttar Pradesh V. Raj Narian, AIR 1975 SC 865 884 : (1975) 4 SCC 528………..18
Sudhir Chandra V. Tata Iron & Steel Co. Ltd., AIR 1984 SC 1064,1071 : (1984) 3 SCC
369……………………………………………………………………..……………………..17
Sunil V. Delhi Admn., AIR 1978 SC 1675……………………..............................................21
United States V. Wunderlich (1951) 342 US 98……………………………………………...15
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MEMORIAL ON BEHALF OF THE PETITIONER v
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B. BOOKS.
1. Basu, D.D., Constitutional Law Of India, Lexis Nexis Butterworths Wadhwa
(Nagpur), 8th Edn.,2008.
2. Jain, M.P., Indian Constitutional Law, Lexis Nexis Butterworths Wadhwa (Nagpur),
6th Edn. 2010…………………………………………………………………………16
3. Jain, M.P. & Jain, S.N., Principles Of Administrative Law, Wadhwa & Company
(Nagpur), 4th Edn., 1986……………………………………………………………….7
4. Shukla, V.N., Constitution Of India (Ed. By M.P. Singh), Eastern Book Company
(Lucknow), 11th Edn., 2010…………………………………………………………..11
C. STATUTES.
1. The Constitution of India,
2. The Official Secrets Act, 1923,
3. Right To Information Act, 2005,
4. The Criminal Procedure Code, 1973.
D. OTHER SOURCES.
1. Atul Joshi, Need For Transparancy In Public Administration,
hhtp://www.preservearticle.com/201105126517/need-for-transparancy-in—public-
administration.html. Last visited on 23/2/2013…………………………………….13
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MEMORIAL ON BEHALF OF THE PETITIONER vi
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2. Exemtions From Disclosure Of Information Under RTI‟,
http://www.legalserviceindia.com/article/1345-Exemtions-from-disclosure... Last
visisted on 24/2/2013 ...................................................................................................10
3. Madhavi Divan, From Secrcy To The Freedom of Information-A Relecutant
Transition, (2003) 8 SCC (Jour) 60………………………………………….……….12
4. Prof. Madabhushi Sridhar, Independent India Is Yet To Lift British Iron Curtians,
http://indiacurrentaffairs.org/official-secrecy-power-vs-citizen%E2%80%99s-acces-
right-professor-madabhushi-sridhar. Last visited on 23/2/2013………..……………12
5. Right To Information, Master key To Good governance, First Report, Second
Administrative Reforms Commission, June 2006……………………………………10
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MEMORIAL ON BEHALF OF THE PETITIONER vii
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STATEMENT OF FACTS
1. Dr. Mansukh Lal is the Chief Minister of State of Purvanchal and Miss Lilly Gupta is a
Member of Legislative Assembly of Purvanchal but she is a strong critic of the ruling
party.
2. In March 2012, a large scale communal riot took place in the state which according the
newspaper reports/electronic media was the result of a planned scheme by a religious
fundamentalist group known as „Black Cat‟.
3. Allegations had been published by certain newspapers that the Purvanchal Government
had ignored the Police Intelligence Reports about the illegal activities of „Black Cat‟,
which was submitted on January 2012.
4. Due to this allegations which put forward the Opposition Parties to strongly criticized the
inaction of the Government and demanded the resignation of the Chief Minister.
5. On 1st August 2012, Miss Lilly Gupta informed to the media that she had collected clear
evidence regarding the failure of the State Government in performing the constitutional
duty for maintenance of law and order.
6. The next day i.e. on 2nd August 2012, Miss Lilly Gupta quoted a Intelligence Report in
the Legislative Assembly which was submitted by Inspector General of Police
(Intelligence) to the Chief Inspector on 10th February 2012. This report stated that the
„Black Cat‟ had planned to promote enmity and hatred between the different religious
groups in the state.
7. The report had mentioned nearly 200 black listed persons along with their name and other
details, which also included the names of two MLAs of the ruling party i.e., Dr. Chintu
Prasad and Mr. Raj Bihari Lal.
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MEMORIAL ON BEHALF OF THE PETITIONER 1
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8. The said Two MLA denied the allegation and alleged that the report was not genuine.
Further, they stated that the report was fabricated by Miss Lilly Gupta. However, the
Chief Minister confirmed the genuineness of the report.
9. When Miss Lilly Gupta was proceeding towards the Legislators‟ hostel after the
discussion in the Legislative Assembly, the police stopped her way and arrested her.
10. On the very same day, she was produced before the Judicial Magistrate ( First Class ) and
F.I.R. was filed stating that she was accused of offence under Section 5 of the Official
Secrets Act, 1923.
11. The police during their investigation received no evidence except the fact that she had
received the Intelligence Report.
12. The Final report was forwarded by the Police on 10th October 2012 framing charges
against her for the commission of offence under section 5(2) of the Official Secrets Act,
1923.
13. Miss Lilly Gupta filed a petition before the High Court of Purvanchal on 18th November
2012 for quashing the Final Report of the Police and the charges against her under
Section 482 of the Code of Criminal Procedure, 1973.
14. Miss Lilly Gupta contended that the case against was politically motivated. Further, since
she had the privileges under Article 194(2) of the Constitution of India. Hence, no action
could be taken against her.
15. On the same day, she also filed a Writ Petition challenging the Constitutional validity of
Section 5 of the Official Secrets Act, 1923 on the ground that it violates Article 14,
19(1)(a) and Article 14 of the Constitution of India.
16. The petition was referred to the Chief Justice Stating that the issues involved may be
decided by a larger Bench.
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17. The Chief Justice Constituted a Full Bench on 25th November 2012 for the adjudication
of the petitions filed by the Miss Lilly Gupta.
18. The case is posted for final hearing before the Learned Judges of this Honorable Court.
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STATEMENT OF ISSUES
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1. Whether Writ Petition Is Maintainable?
2. Whether Section 5 Of The Official Secrets Act, 1923 Constitutionally Valid?
3. Whether The Provision Under Section 5 Of The Official Secrets Act, Is Against The
Rule Of Law, And Violates The Fundamental Rights Under Article 14, 19(1)(a) and
Article 21 Of The Constitution?
4. What Reliefs The Petitioner Is Entitled To?
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WRITTEN PLEADINGS
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1. Whether Writ Petition Is Maintainable?
It is most humbly submitted before the Hon‟ble Court that the writ petition is maintainable.
The petitioner‟s fundamental rights enshrined in Part III of the constitution specially Article
14, 19(1)(a) and 21 had been violated by arresting under Section 5 of the Official Secrets Act
1923 (hereinafter OSA). Furthermore, the section 5 of the OSA is against the basic features
of the Constitution i.e., Rule of Law 1 , Right to Equality 2 , democracy 3 , Supremacy of the
Constitution4. Hence, the writ petition is maintainable.
It is most humbly submitted that the right to know is implicit in the right to freedom of speech
and expression as contained in Article 19(1)(a) of the Constitution. The disclosure of
information regarding the functioning of the Government must be the rule and the secrecy the
exception.5 The petitioner had disclosed certain facts based on the Report of the Inspector
General of Police (intelligence) submitted to the Chief Secretary of the Purvanchal State and
the genuineness of the Report had been confirmed the Chief Minister himself6. For which the
petitioner was charged. Hence, Writ Petition is maintainable.
It is humbly submitted that the modern concept of Rule of Law includes opportunity of
hearing i.e. Audi Alteram Partem, which is included under Article 14 of the Constitution. The
1
Indra Gandhi V. Raj Naraian, AIR 1975 SC 2299 (2369-71).
2
Indra Gandhi V. Raj Naraian ,ibid.
3
Kesavanada Bharati V. State of Kerala, AIR 1973 SC 1461.
4
Kesavanada Bharati V. State of Kerala, ibid.
5
S.P.Gupta V. Union of India, AIR 1982 SC 149.
6
Refer Moot Problem at para 3.
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doctrine of Natural Justice is a synonym of fairness.7 In the present case principle of Natural
Justice has not been followed by the Police. Hence, the Police Report is required to be
quashed and appropriate order may be passed in view of Justice.
It is humbly submitted that generally FIR is the earliest report made to the Police Officer with
a view to his taking action in the criminal matter8and the copy of FIR is also required to be
given to the accused but it was not given to the petitioner. In the present matter, FIR had been
made as required but had been made formal one in order to legalise the proceeding. Hence, it
is humbly requested to quash the proceeding against Petitioner by maintaining Writ Petititon.
It is humbly submitted that the freedom of speech that is available to the members of
Parliament under Article 105(1) and 194(2) to the members of State Legislature is wider in
amplitude than the right to freedom of speech and expression guaranteed by Article 19(1)(a)
of the Constitution and the freedom of speech under abovementioned provisions is not subject
to the restriction contained in Article 19(2). 9 By arresting the petitioner who is MLA of
Purvanchal State had violated the mandate of the Constitution. Hence, the Writ is
maintainable for hearing.
It is humbly submitted that the petitioner has approached before the Hon‟ble Court under
Article 226 of the Constitution for the enforcement of fundamental right guaranteed by
Article 14, 19(1)(a) and Article 21 of the Constitution. Furthermore, for the enforcement of
Article 194(1) and (2) of the Constitution.
7
Kumaon Mandal Vikas Nigam Ltd. V. Girja Shankar Pant, AIR 2001 SC 24.
8
Soma Bhai V. State of Gujarat, AIR 1975 SC 1553.
9
P.V. Narasimha Rao V.State, AIR 1998 SC 2120.
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2. Whether Section 5 Of The Official Secrets Act, 1923 Constitutionally Valid?
It is most humbly submitted before the Hon‟ble Court that the provision of section 5 of the
Official Secrets Act, 1923 is constitutionally invalid. The provision of the said Section is the
„catch all‟ provision. Not only is the person communicating the information guilty of an
offence under the section, but also the person receiving it. The coverage of persons having
possession of official information who are liable under the Section is extremely wide. It
includes, any person in possession or control of secret official information; any person
obtaining information in contravention of the Act; any person to whom official information
has been entrusted in confidence by any person holding office under government, and any
person obtaining or having access to information owing to his holding any office (present or
past), or holding any government contract, or any person holding office under any of these
persons. Hence, the official information covered by the section is also extremely broad. Any
kind of information is covered provided it is „secret‟. Nowhere, the word „secret‟ or „official
secret are defined in the Act. The only thing, what is clear is that, the Act applies only to
official secrets and not to secrets of private nature10. As there is no definition of word „secret‟
in the Act, it is for the government to decide what it should declare as a secret or not, which
essentially gives the government a carte blanche to the executive to prosecute anyone
disclosing official information11 and to decide upon what should be classified as a secret.
It is humbly submitted that, such broad provision of the Section gives wide discretionary
power to the public authorities to bring anything under the ambit of the Section and declare it
as a secret. Which in fact attract the exercise of arbitrariness of the power and convict any
10
Jain, M.P. & Jain, S.N., Principles Of Administrative Law, 4th Edition, 1986, p. 895.
11
Ibid, p.896
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person contravening the said Section and violates the basic features of the Constitution like
Rule of Law12, the principle of equality13, democratic14, and Supremacy of the Constitution15.
Further, it contravenes the fundamental rights as enshrined in part III of the Constitution
specially Article 14, 19(1)(a) and Article 21 of the Constitution and also the democratic
principles like open government and good governance. Thus, Section 5 of the Act is arbitrary
with the basic fundamental principles laid down in the Constitution. Hence, it is
constitutionally invalid and should be struck down.
2.1. Section 5 of the Official Secrets Act, 1923 Constitutionally Invalid.
It is most humbly submitted that the Hon‟ble Supreme Court of India in Namita Sharma V.
Union of India 16 dealing the matter of constitutionality of sub-Sections (5) and (6) of
Section 12 and sub-Sections (5) and (6) of Section 15 of the Right To Information Act 2005
observed that “The Constitution of India expressly confers upon the courts the power of
judicial review. The courts, as regards the fundamental rights, have been assigned the role of
sentinel on the qui vive under Article 13 of the Constitution. Our courts have exercised the
power of judicial review, beyond legislative competence, but within the specified limitations.
While the court gives immense weightage to the legislative judgment, still it cannot deviate
from its own duties to determine the constitutionality of an impugned statute. Every law has
to pass through the test of constitutionality which is stated to be nothing but a formal test of
12
13
Indra Gandhi V. Raj Naraian, ibid.
14
Kesavanada Bharati V. State of Kerala, AIR 1973 SC 1461.
15
Kesavanada Bharati V. State of Kerala,( para 35, 44)
16
Writ Petition (Civil) No. 210 of 2012, (para 7,8,9,10), decided on September 13, 2012.
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rationality”. Hence, the Section 5 of the Act must pass through the test of rationality by way
of judicial review.
The Hon‟ble Supreme Court of India in the instant case also observed that, “ an enacted law
may be constitutional or unconstitutional. Traditionally, the Hon‟ble Supreme Court of India
Court had provided very limited grounds on which an enacted law could be declared
unconstitutional. They were legislative competence, violation of Part III of the Constitution
and reasonableness of the law.. With the passage of time, the law developed and the grounds
for unconstitutionality also widened. D.D. Basu in the 'Shorter Constitution of India'
(Fourteenth Edition, 2009) has detailed, with reference to various judgments of this Court, the
grounds on which the law could be invalidated or could not be invalidated. A law may be
unconstitutional on a number of grounds and one of which is Contravention of any
fundamental right, specified in Part III of the Constitution”.
It is humbly submitted that Section 5 of the Act infringes the fundamental rights as enshrined
in part III of the Constitution specially Article 14, 19(1)(a) and Article 21 of the Constitution.
Thus section 5 of the Act fulfills the ground on which law can be invalidated, particularly on
the ground of contravening the fundamental rights. Moreover, no prejudice needs to be
proved in cases where breach of fundamental right is claimed and the violation of
fundamental right itself renders the impugned action void17.
It is humbly submitted that the Section 5 of the OSA, 1923 is incongruous with the provision
of the Right to Information Act, 2005 as it violates a fundamental right granted under Part III
17
Namita Sharma V. Union of India Writ Petition (Civil) No. 210 of 2012, (Para 12, 13), decided on September 13,
2012.
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of the Constitution 18 . The OSA 1923 becomes eclipse by the application of doctrine of
eclipse under Article 13 of the Constitution. Since it is inconsistent with fundamental right, it
is overshadowed until and unless its inconsistency is removed19.
It is humbly submitted that the OSA, 1923 has historically nurtured a culture of secrecy and
non-disclosure, which is against the spirit of the Right To Information Act, 2005.20 Despite
implied repeal of the OSA by non-obstante clause of Section 22 of the RTI Act, 2005. For the
change and sake of effective implementation of the RTI Act, 2005, the OSA needs to be
repealed or modified to the extent of necessary.21
It is humbly submitted that, Article 13(1) of the Constitution clearly states that, “ all laws in
force in the territory of India immediately before the commencement of this Constitution, in
so far as they are inconsistent with provisions of this part shall, to the extent of such
inconsistency be void.” Hence, section 5 of the OSA, 1923 is an outrageous contravention
of the Part III of the Constitution. Moreover, a law which violates the fundamental right of a
person is void22. A statute which violates the constitution cannot be pronounced valid merely
because it is being administered in a manner which might not conflict with the constitutional
requirements.23 Although, the Section 5 of the Act will continue to be in force, so long as the
Court do not hold it as unconstitutional, but a plea that it was in force for long period of time
after the commencement of the Constitution would not be a good defence for declaring it
18
„Exemtions From Disclosure Of Information Under RTI‟, http://www.legalserviceindia.com/article/1345-
Exemtions-from-disclosure... Last visisted on 24/2/2013.
19
Bhikaji Narian Dhakras V. State of M.P., AIR 1955 SC 781.
20
Right To Information, Master key To Good governance, First Report, Second Administrative Reforms
Commission, June 2006. p.5.
21
Ibid, p.11.
22
Namita Sharma V. Union of India, ibid.
23
Namita Sharma V. Union of India, ibid.
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Constitutional. Sometimes a Law may be found against the fundamental rights long after the
commencement of the Constitution24, so is in the present case. Hence, Section 5 of the Act
shall be struck down and declare unconstitutional.
2.2. Section 5 Of The Official Secrets Act, 1923 is Against The Democratic Principles.
It is most humbly submitted that, the OSA, 1923 is a Pre-Constitutional law. It was enacted
nine decades ago and long before the Constitution of India was adopted. So it does not go
along with democratic principles enunciated in the Constitution. Democracy expects
openness and openness is a concomitant of a free society25. The petitioner herein had tried to
perform her constitutional duty by way of criticizing the functioning of the Government, as
the criticism brings improvement and fairness.
It is humbly submitted that, where a society has chosen to accept democracy as its creedal
faith, it is elementary that all citizens ought to know what their government is doing. The
citizens have a right to decide by whom and by what rules they shall be governed and they
are entitled to call on those who govern on their behalf to account for their conduct. No
democratic Government can survive without accountability and the basic postulate of
accountability is that the people should have information about functioning that they can
fulfill the role which democracy assigns to them and make democracy a really effective
participatory 26 . Furthermore, the citizens‟ right to know the facts, the true facts, about
administration of the country is thus one of the pillars of a democratic state and that‟s why
24
Shukla, V.N., Constitution Of India,(Ed. By M.P. Singh), 11th Edition, 2010, p. 36.
25
Dinesh Trivedi, M.P. V. Union of India, (1997) 4 SCC 306.
26
S.P.Gupta V. Union of India, AIR 1982 SC 147 (para 63).
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the demand for openness in the government is increasingly growing in different parts of the
world27.
It is humbly submitted that the secrecy has been the norm in the working of the Government,
and Transparency a exception. 28 In the guise of protecting the State‟s interest, secrecy in
public affairs has been a shield for those in Government, a means of concealing their actions
from public scrutiny29. “Laws that licence secrecy are a colonial legacy and are adopted by
totalitarian regimes to legitimize suppression of information about its functioning. Secrecy in
public affairs is anathema to the very notion of democracy. Yet laws favouring governmental
secrecy have dragged on for half a century after India became a democratic republic.” 30 In the
same rationale the Section 5 OSA, 1923 is unconstitutional in the present form of
government, i.e., democratic republic.
It is humbly submitted that, democracy being the basic feature of the Constitution, no laws
should contradict the same and its essential democratic principles like open government and
good governance. In a democracy, people are sovereign and the elected Government and its
functionaries are public servants. Therefore, by the very nature of things, transparency should
be the norm in all matters of governance31. Transparency is the basic tenet of democracy. If
the people are the final master and performance auditors of the nations administration, the
27
S.P.Gupta V. Union of India, ibid.
28
Madhavi Divan, From Secrcy To The Freedom of Information-A Relecutant Transition, (2003) 8 SCC (Jour)
60.
29
Ibid.
30
Ibid
31
Prof. Madabhushi Sridhar, Independent India Is Yet To Lift British Iron Curtians,
http://indiacurrentaffairs.org/official-secrecy-power-vs-citizen%E2%80%99s-acces-right-professor-
madabhushi-sridhar. Last visited on 23/2/2013
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case for free access to all public information argues itself 32. It is absurd to grant right to
information which emanates from right to free speech and expression through Article
19(1)(a) of the Constitution and take away the same by the OSA, 1923, is unconstitutional as
it denies the citizens right to enjoy free speech and expression meaningfully. 33 Thus the
disclosure of information regarding the functionality of the Government must be the rule and
the secrecy an exception34. But so long as the provision of Section 5 exists, the disclosure of
information regarding the functionality of the Government is an exception and the secrecy a
rule. Hence Section 5 of the Act should be declared unconstitutional as being against the
democratic principles.
3. Whether The Provision Under Section 5 Of The Official Secrets Act, Is Against The
Rule Of Law, And Violates The Fundamental Rights Under Article 14, 19(1)(a) and
Article 21 Of The Constitution?
It is most humbly submitted that, the provision of Section 5 of the OSA, 1923 is against the
principle of Rule of Law which is one of the basic feature of the Constitution. A law which is
against the basic feature of the Constitution cannot be held valid. In addition to it, the said
Provision also contravenes the Fundamental Rights as enshrined in Part III of the
Constitution, particularly Article 14, 19(1)(a) and Article 21. Again a law which violates the
Fundamental Rights is void35. Hence, Section 5 of the Act is unconstitutional and should be
declared invalid.
32
Atul Joshi, Need For Transparancy In Public Administration,
hhtp://www.preservearticle.com/201105126517/need-for-transparancy-in—public-administration.html. Last
visited on 23/2/2013.
33
Ibid.
34
S .P.Gupta V. Union of India, ibid.
35
Namita Sharma V. Union of India Writ Petition (Civil) No. 210 of 2012,( para 13)
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3.1. Section 5 Of the Official Secrets Act, 1923 Is Against The Rule Of Law.
It is most humbly submitted that, the Rule of Law is regarded as basic feature of the
Constitution36 and therefore it cannot be abrogated or destroyed by the laws and even by the
Parliament. However, the Section 5 of the OSA, 1923 being a „Catch All‟ provision and such
broad provision of the Section gives wide discretionary power to the public authorities to
bring anything under the ambit of the Section and declare it as a secret and prosecute any
person disclosing the secret. The wide discretionary powers given to public authorities by the
said Section accommodate arbitrariness which is against the Rule of Law. According to
Dicey‟s theory, “wherever there is discretion, there is room for arbitrariness and that in a
republic no less than under a monarchy discretionary authority on the part of the government
must mean insecurity for legal freedom on the part of its subjects”. The absence of arbitrary
power is the primary postulate of Rule of Law upon which the whole constitutional edifice is
dependant 37 . It is important to emphasize that the absence of arbitrary power is the first
essential of Rule of Law upon which whole constitutional system is based.38
It is humbly submitted that, the discretionary power conferred to public authorities by the
very nature of language used in Section 5 of the Act is not confined within defined limits;
unreasonable and unpredictable. In a system governed by Rule of Law, discretion, when
conferred upon executive authorities, must be confined within clearly defined limits39. The
Rule of Law which permeates the entire fabric of the Indian Constitution excludes
36
37
Som Raj V. State of Harayana,AIR 1990 SC 1176.
38
S.G. Jaisinghani V. Union of India and Ors. [1967] 2 SCR 703.
39
S.G. Jaisinghani V. Union of India and Ors. Ibid. and also in Aeltemesh Rein, Advocate, Supreme Court of
India V. Union of India And Others, AIR 1988 SC 1768.
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__________________________________________________________________________________
arbitrariness and unreasonableness40. Arbitrariness is the very negation of the Rule of Law.
Wherever we find arbitrariness or unreasonableness there is denial of Rule of Law41. The
Rule of Law means that decision should be predictable and the citizen should know where he
is. If a decision is taken without any principle or without any rule it is unpredictable and such
decision is the antithesis of decision taken in accordance of Rule of Law42. Hence, Sections 5
of the Act violates the Rule of Law, so it is unconstitutional.
It is humbly submitted that, the absolute discretionary power given to the public authorities
initiates unnecessary prosecutions and sufferings to the subjects. Where discretion is
absolute, man has always suffered. At times it has been his property that has been invaded, at
times his privacy, at times his liberty of movement, at times his freedom of thought, at times
his life43. Absolute discretion is a ruthless master, it is more destructive of freedom than any
of mans other invention 44 . State governed by the Rule of Law, discretion can never be
absolute 45 . If the discretion is exercised without any rule, it is a situation amounting to
antithesis of Rule of Law46. Discretion means sound discretion guided by law or governed by
known principles of rules, not by whim or fancy or caprice of authority47. Thus, Section 5 of
the Act Ultra Vires the Rule of Law which is a basic feature of the Constitution. Hence, it is
unconstitutional and should be struck down.
40
Bachan Singh V. State of Punjab,AIR1982 SC 1382.
41
Bachan Singh V. State of Punjab, ibid.
42
S.G. Jaisinghani V. Union of India and Ors. [1967] 2 SCR 703.
43
United States V. Wunderlich (1951) 342 US 98.
44
United States V. Wunderlich, ibid.
45
John Wilkes (1770) 4 Burr 2528.
46
Som Raj V. State of Harayana,AIR 1990 SC 1176.
47
Som Raj V. State of Harayana,ibid.
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__________________________________________________________________________________
3.2.Section 5 Of The Official Secrets Act, 1923 Contravenes Article 14 Of The
Constitution.
It is most humbly submitted that, the provision of Section 5 of OSA, 1923 violates Article 14
of the Constitution primarily on ground of conferring the public authorities to exercise the
power arbitrarily. Since the provision of the said section lacks clarity and does not prescribe
the definite guidelines by which the concerned authorities can held a person a guilty of
breach of the Section. Wide discretionary power of public authorities given by Section 5 of
the Act creates a condition conducive of exercising the power conferred arbitrarily and it
directly contradicts with the principle of equality which is a basic feature of the
Constitution48. The expression „arbitrarily‟ means in an unreasonable manner, as fixed or
done capriciously or at pleasure, without adequate determining principle, not found in the
nature of things, non-rational, not done or acting according to reason or judgement,
depending on the will alone 49 . It is now well settled that every state action, in order to
survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of
the Constitution and basic to the Rule of Law the system which govern citizen of India50.
It is humbly submitted that, the Section 5 of Act lacks clear norms and principle for
exercising the discretionary powers by the public authorities in question. Prof. M.P. Jain in
his book „Indian Constitutional Law‟51 states, “in order to ensure that discretion is properly
exercised, it is necessary that the statute in question lays down some norms or principles
48
Indra Gandhi V. Raj Narain, AIR 1975 SC 2299 (paras 680 682, and also in Minerava Mills V. Union of
India, AIR 1980 SC 271 (para 31).
49
M/S Sharma Transport REP. By Shri D.P. Sharma V. Government of A.P. & ORS, AIR 2000 SC 3689.
50
Shrilekha Vidyarthi V. State of Uttarpradesh, AIR 1991 SC 537.
51
Sixth Edition, 2010.
__________________________________________________________________________________
__________________________________________________________________________________
according to which administrator has to exercise the discretion. Many a time the statutes do
not do this and leave the administrator free to exercise his power according to his judgement.
This creates the danger of official arbitrariness which is subversive of the doctrine of
equality”. Article 14 of the Constitution can be invoked to mitigate this danger and in course
of time it has evolved into a very meaningful guarantee against any action of the
administration which may be arbitrary, discriminatory or unequal52. Hence, Article 14 can be
invoked in the present case.
It is humbly submitted that, the provision of Section is violative of equality clause enshrined
in Article 14. If power conferred by statute on any authority of the State is vagrant and
uncontrolled and no standards or principles are laid down by the statute to guide and control
the exercise of such power, the statute would be violative of equality clause, because it would
permit arbitrary and capricious exercise of power which is the antithesis of equality before
law53.
It is humbly submitted that the Article 14 strikes at arbitrariness in executive/administrative
action because any action that is arbitrary must necessarily involve the negation of equality.
One need not confine the denial of equality to comparative evaluation between two persons to
arrive at a conclusion of discriminatory treatment. An action of arbitrary per se denies
equality of protection by law54. Hence, Section 5 of the Act is violative of Article 14 of the
Constitution and it is unconstitutional and should be struck down.
52
Shrinivasa Rao V. J. Veeraiah, AIR 1993 SC 929; R.L Bansal V. Union of India, AIR 1993 SC 978 : 1992
Supp (2) SCC 318.
53
Naraindas V. State of Madhya Pradesh, AIR 1974 SC 1232 : (1974) 4 SCC 788. Also refer Sudhir Chandra
V. Tata Iron & Steel Co. Ltd., AIR 1984 SC 1064,1071 : (1984) 3 SCC 369.
54
A.L. Kalra V. P & E Corpn of India, Ltd., AIR 1984 SC 1361, 1367
__________________________________________________________________________________
__________________________________________________________________________________
3.3. Section 5 Of The Official Secrets Act, 1923 Violates Article 19(1)(a) Of The
Constitution.
It is most humbly submitted that the provision of Section 5 of the Act violates the
fundamental rights as enshrined and recognized by the Article 19(1)(a) of the Constitution,
i.e., Freedom of Speech and Expression. The Section 5 of the Act denies right to information,
which is a facet of the freedom of speech and expression as contained in Article 19(1)(a) of
the Constitution and indisputably a fundamental right55 .
It is humbly submitted that the Section 5 of the Act breeds secrecy, which is unendurable in
democratic country like India and contradict with citizens‟ right to know. The Hon‟ble
Supreme Court of India in State of Uttar Pradesh V. Raj Narian56 laid down the significance
of right to know in democracy in these words, “in a government of responsibility like ours,
where all the agents of the public must be responsible for their conduct, there can be but few
Secrets. The people of this country have right to know every public act, everything that is
done in a public way, by their functionaries. They are entitled to know the particulars of
every public transaction in all its bearing. The right to know, which is derived from the
concept of freedom of speech, though not absolute, is a factor which should make one wary,
when secrecy is claimed for transactions which can, at any rate, have no repercussion on
public security. To cover with veil of secrecy, the common routine business is not in the
interest of public. Such secrecy can seldom be legitimately desired. It is generally desired for
the purpose of parties and politics or personal self-interest or bureaucratic routine the
responsibility of officials to explain and to justify their acts is the safeguard against
55
People‟s Union for Civil Liberties V. Union of India, AIR 2004 SC 1442 : (2004) 2 SCC 476.
56
AIR 1975 SC 865 884 : (1975) 4 SCC 528.
__________________________________________________________________________________
__________________________________________________________________________________
oppression and corruption”. The right to know means receiving and imparting information
within the right to freedom of speech and expression and the citizens has a fundamental right
to use the best means of imparting and receiving information57.
It is humbly submitted that the restriction which is being imposed by Section 5 of the Act to
the citizens of this country to exercise their fundamental right contained in Article 19(1)(a) of
the Constitution is unreasonable to the present conditions of time. Legislation which
arbitrarily or excessively invades any of the six freedom granted by Article 19(1)(a) cannot
be said to contain the quality of reasonableness. Until and unless Section 5 is invalidated
abridgment of the fundamental right of a citizen will continue.
It is humbly submitted that the freedom of speech and expression guaranteed by Article
19(1)(a) of the Constitution includes the right to acquire information and to disseminate the
same58 . The petitioner herein acquired the Intelligence Report and disclosed it before the
Legislative Assembly of Purvanchal and so did the press by reporting it in the newspaper.
The petitioner had exercised her right bestowed to her by the virtue of Article 19(1)(a) of the
Constitution. Hence, petitioner is not guilty of the offence charged under Section 5(2) of the
Act .
It is humbly submitted that the provision of the Section 5 of the Act contravenes the freedom
of press by the very nature of language used in the Section like mere possession and received
of secret. It is a fundamental right implicit in the freedom of speech and expression under
Article 19(1)(a) of the Constitution59 . It has always been cherished right in all democratic
57
S.P.Gupta V. Union of India, AIR 1982 SC 149 : Supp SCC 87.
58
Secretary, Ministry of Information and Broadcasting, Govt. of India V. Cricket Association of Bengal, AIR
1995 SC 1236.
59
Printers (Mysore) Ltd. V. Assistant Commercial Tax Officer, (1994) SCC 434.
__________________________________________________________________________________
__________________________________________________________________________________
countries and the press has rightly been described as the fourth estate and the democratic
credentials of a state are judged by the extent of freedom the press enjoys in that State60. The
purpose of press is to advance the public interest by publishing facts and opinions without
which a democratic country cannot make any responsible judgement61.
It is humbly submitted that in the present case the petitioner and press played a constructive
role by reviewing the inaction of Government of Purvanchal in preventing the communal riot
despite receiving the Intelligence Report of Police. Had government taken the right action,
the communal riot could have prevented. For this, the role of press is crucial in unveiling the
truth. In the present case, the Government of Purvanchal took the refuge of Section 5 of the
Act and charged the petitioner for receiving the information which was alleged to be Secret,
in fact it was just to blanket its failure in maintaining security and; law and order in the State.
Thus, Section 5 of the Act imposes unnecessary restriction of citizens‟ fundamental right
guaranteed under Article 19(1)(a) of the Constitution and gives refuge to such inaction on the
part of the Government which is unjust and unreasonable. Hence, Section 5 of the Act is
outrageous infringement of fundamental right guaranteed by Article 19(1)(a) of the
Constitution and it should be struck down and declare unconstitutional.
3.4. Section 5 Of The Official Secrets Act, 1923 Violates Article 21Of The Constitution.
It is most humbly submitted that the provision of Section 5 of the Act violates Article 21 of
the Constitution. Article 21 of the Constitution read as under;
“No person shall be deprived of his life or personal liberty except according to procedural
established by law”.
60
Printers (Mysore) Ltd. V. Assistant Commercial Tax Officer, ibid.
61
Indian Express Newspapers (Bombay) Private Ltd. V. Union of India, AIR 1986 SC 515 : (1985) 1 SCC 641.
__________________________________________________________________________________
__________________________________________________________________________________
The expression life in Article does not cannote merely physical or animal existence but
embraces something more and it takes within its fold some of the fine graces of civilization
which makes life worth living62. The right to know falls within the ambit of Article 21 of the
Constitution and it is basic right which citizens of free country aspire in the broader horizon
of the right to live in this age on our land as it being necessary ingredients of participatory
democracy63. The right to life guaranteed under Article 21 embraces within sweep not only
physical existence but the quality of life and if any statutory provisions run counter to such
right it must be held unconstitutional64. Hence, Section 5 of the Act imposes unreasonable
restriction to exercise the right to know meaningfully and on that very fact, it violates Article
21 of the Constitution.
In order to be a Law within the purview of Article 21 of the Constitution, it must be a valid
law and it is a valid law only if it is enacted by the competent Legislature and if it does not
violate any of the fundamental rights declared by the Constitution like Article 1465. It is open
to challenge the constitutionality of law which deprives personal liberty on the ground that it
contravenes any of the fundamental rights other than Article 2166. The Section 5 of the Act
being unconstitutional as reasoned under aforementioned issues, it violates Article 21 of the
Constitution.
It is humbly submitted that the expression „personal liberty‟ in Article 21 of the Constitution
means as observed by the Hon‟ble Supreme Court of India, “is of the widest amplitude and it
62
Francis Coralie V. Delhi,AIR 1981 SC 746,753 : (1981) 1 SC 608.
63
Reliance Petrochemicals Ltd. V. Indian Express Newspaper Bombay (P) Ltd, AIR 1989 SC 190 : (1989) 4
SCC 592.
64
Confederation of Ex-serviceman Associatiion V. Union of India, AIR 2006 2495 : (2006) 8 SCC 399.
65
Shiv Bahadur V. State of U.P., (1953) SCR 1188
66
Makhan Singh V. State of Punjab, AIR 1964 SC 381; Sunil V. Delhi Admn., AIR 1978 SC 1675 (para. 164).
__________________________________________________________________________________
__________________________________________________________________________________
covers a variety of rights which go to constitute the personal liberty of man and some of them
have been raised to the status of distinct fundamental rights and given additional protection
under Article 19 of the Constitution.” 67 . Section 5 of the OSA restricts all the rights
conferred by the Article 19, specifically Article 19(1)(a) of the Constitution which constitute
personal liberty of a person like right to know. Hence, Section 5 of the Act needs to be struck
down.
It is humbly submitted that a person could not be deprived of his life and personal liberty
merely by an executive fiat without there being a valid law to support it68 and could not be
arrested for doing an act made penal by an unconstitutional statute and it would not be
procedure established by law. A Law prescribing a procedure for depriving a person of
personal liberty will have to meet the requirement of Article 21 and also of Article 19 as well
as of Article 14.69Moreover, the principle of reasonableness which is an essential element of
equality and non-arbitrariness pervading Article 14, must also apply with equal force to the
procedure contemplated by Article 21, that is, the procedure be „right, just and fair‟ and not
„arbitrary, fanciful, or oppressive‟70. Since, Section 5 of the Act being unconstitutional as
reasoned in aforementioned issues, it does not conform to the requirement of Article 14, 19
and 21. Hence, it violates Article 21 of the Constitution.
67
Maneka Gandhi V. Union of India, AIR 1978 SC 597,622 : (1978) 1 SCC 248.
68
Kharak Singh V. State of Uttar Pradesh, AIR 1963 SC 1295 : (1964) SCR 332; Satwan Singh V. A.P.O., AIR
1967 SC 1836 : (1967) 3 SCR 525.
69
Maneka Gandhi V. Union of India, AIR 1978 SC 597,622 : (1978) 1 SCC 248.
70
Maneka Gandhi V. Union of India, ibid.
__________________________________________________________________________________
__________________________________________________________________________________
4. What Reliefs The Petitioner Is Entitled To?
It is humbly submitted before the Hon‟ble High Court that the petitioner has sustained mental
harassment as well as her reputation has been tarnished. Hence, she is entitled to
compensation amounting to Rs. 25 Lakhs.
It is humbly submitted that the petitioner being an Member of Legislative Assembly has
certain privileges under Article 194(2) of the Constitution but her privilege has been violated
because of her arrest and initiated unnecessary prosecution to her hence she is entitled to
entire cost of the proceedings.
__________________________________________________________________________________
__________________________________________________________________________________
PRAYER
It is therefore most humbly prayed before the Hon‟ble Court that, in the light of the issues
raised, arguments advanced and authorities cited, the Court may be pleased adjudge the
contentions of the petitioner and
1. The writ in the nature of Mandamus be issued against First Class Magistrate as well
as the Chief Secretary of Purvanchal State.
2. The writ in the nature of Habeas Corpus be issued to release the petitioner.
3. The Final Report of Police and charge be quashed and proceeding against petitioner
be dropped.
4. Section 5 of the Official Secrets Act be declared unconstitutional as it is in
contradiction with Rule of Law, Article 14, 19(1)(a) and Article 21 of the Constitution
of India.
Pass any orders as it may deem fit in the interest of Justice, Equity and Good Conscience.
For this kind consideration, the counsel shall ever pray.
All of which is humbly submitted
Counsels For The Petitioner
__________________________________________________________________________________
__________________________________________________________________________________
__________________________________________________________________________________

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In The Honble High Court of Purvanchal W

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In The Hon’ble

High Court Of Purvanchal

Miss Lilly Gupta……………………...……………...………………………….….Petitioner

Written Submission On Behalf Of The Petitioner

Counsels On Behalf Of the Petitioner

Team Code 134410P

STATEMENT OF ISSUES......................... …………………………………………………4

1. Whether Writ Petition Is Maintainable?................................................................5-6

2. Whether Section 5 Of The Official Secrets Act, 1923 Constitutionally Valid?...7-8

2.1. Section 5 Of The Official Secrets Act, 1923 Constitutionally Invalid……….8-11

19(1)(a) and Article 21 Of The Constitution?..........................................................13

3.2.Section 5 Of The Official Secrets Act, 1923 Contravenes Article 14 Of The

4. What Reliefs The Petitioner Is Entitled To? ……………………………………. 23

AIR All India Reporter

OSA Official Secrets Act

RTI Right To Information

SCC Supreme Court Cases

Bachan Singh V. State of Punjab,AIR1982 SC 1382………………………………………...15

Bhijaki Narian Dhakras V. State of M.P., AIR 1955 SC 781………………………………..10

Confederation of Ex-serviceman Associatiion V. Union of India, AIR 2006 2495 : (2006)

Dinesh Trivedi, M.P. V. Union of India, (1997) 4 SCC 306………………………..………..11

Francis Coralie V. Delhi,AIR 1981 SC 746,753 : (1981) 1 SC 608…………………………21

(1985) 1 SCC 641…………………………………………………………………………….20

Indra Gandhi V. Raj Naraian, AIR 1975 SC 2299 (2369-71)………………….… 5, 8, 14, 16

John Wilkes (1770) 4 Burr 2528……………………………………………………………...15

Kesavanada Bharati V. State of Kerala, AIR 1973 SC 1461…………………………...…5, 8

Makhan Singh V. State of Punjab, AIR 1964 SC 381…………….........................................21

Minerava Mills V. Union of India, AIR 1980 SC 271……………………………………….16

P.V. Narasimha Rao V.State, AIR 1998 SC 2120…………………………………….……….6

190 : (1989) 4 SCC 592………………………………………………………………...…….21

Satwan Singh V. A.P.O., AIR 1967 SC 1836 : (1967) 3 SCR 525…………...........................22

Secretary, Ministry of Information and Broadcasting, Govt. of India V. Cricket Association of

Bengal, AIR 1995 SC 1236…………………………………………………………………..19

Shiv Bahadur V. State of U.P., (1953) SCR 1188……………………………………………21

Shrilekha Vidyarthi V. State of Uttarpradesh, AIR 1991 SC 537……………………………16

Shrinivasa Rao V. J. Veeraiah, AIR 1993 SC 929…………………………………………...17

Soma Bhai V. State of Gujarat, AIR 1975 SC 1553…………………………...………………6

Som Raj V. State of Harayana,AIR 1990 SC 1176………………………………..……..14, 15

S.P.Gupta V. Union of India, AIR 1982 SC 149…………………………...…5, 11, 12, 13, 19

S.G. Jaisinghani V. Union of India and Ors. [1967] 2 SCR 703…………...…………....14, 15

Sunil V. Delhi Admn., AIR 1978 SC 1675……………………..............................................21

United States V. Wunderlich (1951) 342 US 98……………………………………………...15

1. Basu, D.D., Constitutional Law Of India, Lexis Nexis Butterworths Wadhwa

(Nagpur), 8th Edn.,2008.

6th Edn. 2010…………………………………………………………………………16

(Nagpur), 4th Edn., 1986……………………………………………………………….7

(Lucknow), 11th Edn., 2010…………………………………………………………..11

1. The Constitution of India,

2. The Official Secrets Act, 1923,

3. Right To Information Act, 2005,

4. The Criminal Procedure Code, 1973.

1. Atul Joshi, Need For Transparancy In Public Administration,

administration.html. Last visited on 23/2/2013…………………………………….13

2. Exemtions From Disclosure Of Information Under RTI‟,

visisted on 24/2/2013 ...................................................................................................10

3. Madhavi Divan, From Secrcy To The Freedom of Information-A Relecutant

Transition, (2003) 8 SCC (Jour) 60………………………………………….……….12

right-professor-madabhushi-sridhar. Last visited on 23/2/2013………..……………12

5. Right To Information, Master key To Good governance, First Report, Second

Administrative Reforms Commission, June 2006……………………………………10

newspaper reports/electronic media was the result of a planned scheme by a religious

fundamentalist group known as „Black Cat‟.

which was submitted on January 2012.