2nd Intra-Moot Court Competition Memorial

2ND INTRA-MOOT COURT COMPETITION, 2021
TEAM CODE-: TC-08

INTEGRAL UNIVERSITY, LUCKNOW
______________________________________________________________________________
17th – 18st DECEMBER, 2021
______________________________________________________________________________
WRIT PETITION
UNDER ARTICLE 32 OF THE CONSTITUTION OF BHARATYANAM
&
SPECIAL LEAVE PETITION
UNDER ARTICLE 136 OF THE CONSTITUTION OF BHARATYANAM
______________________________________________________________________________
BEFORE THE HON’BLE SUPREME COURT OF BHARATYANAM

______________________________________________________________________________
BOSCO PATTERSON & ORS.

(PETITIONER)
V.
UNION OF BHARATYANAM
(RESPONDENT)
______________________________________________________________________________
SUBMISSION BEFORE THE HON’BLE CHIEF JUSTICE AND HIS
COMPANION JUSTICES OF THE SUPREME COURT
______________________________________________________________________________
WRITTEN SUBMISSION ON BEHALF OF PETITIONER
MEMORIAL ON BEHALF OF PETITIONER

Page 1
MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENT
List of Abbreviations……………………………………………………………………………3
Index of Authorities
A. CASES………………………………………………………………………………4- 5
B. BOOKS………………………………………………………………………………….6
Statement of Jurisdiction……………………………………………………………………...7
Synopsis of Facts………………………………………………………………………..…8 - 9
Synopsis of Issues……………………………………………………………………………..10
Summary of Arguments………………………………………………………………………11
Argument Advanced……………………………………………………………………12 – 22
PRAYER……………………………………………………………………………………….23

Page 2
LIST OF ABBREVIATIONS
ABBREVATION DEFINATION
1. ART. ARTICLE
2. SEC. SECTION
3. HON’BLE HONOURABLE
4. SCC SUPREME COURT CASE
5. ORS. OTHERS
6. AIR ALL INDIA REPORTER
7. J&K JAMMU & KASHMIR
8. V. VERSUS
9. BPC BHARATYANAM PENAL CODE
10. SC SUPREME COURT

Page 3
INDEX OF AUTHORITIES
A.CASES
1. Fertilizer Corporation Kamgar vs. Union of India
2. Peoples Union for Democratic (PUDR) v. Union of India (1983)
3. Guruvayur Devaswom v. C.K. Rajan
4. Forward Construction Co. v. PrabhatMandal (Regd.) Andheri, 1986 AIR SC 391
5. K. HanumanthaRao v. Prl Sub-Judge, 1997 (4) ALT 444
6. Dattaraj NathujiThaware v. State of Maharashtra (2005)1 SCC 590, 592-93; AIR SC 540
7. Y.Akbar Ahmed v. The SECRETARY to Government of Tamil Nadu and others on 4

October, 2018
8. Delhi Municipal Workers Union v. MCD, AIR 2001 Del 68
9. Somdarsan Mohanty v.Union of India, 2003 II OLR 452
10. S.Shyamprasad Rao v. Union of India, 1998(6) ALD349.
11. Indian Bank Associations, Bombay v. Devkala Consultancy Service,(2004)11 SCC 1,19
12.Sampat Prakash vs. State of J&K
13.SBI vs. Santosh Gupta with SBI vs. ZaffarUllah Nehru and anr. ETC 2015
14. Babulal vs. State of Bombay
15. Romesh Thappar vs. State of Madras AIR 1950 SC 124
16. LIC of India vs. Manubhai D. Shah, (1992) 3 SCC 637
17. Indian Express vs. Union of India
18. Odyssey Communications pvt. Ltd vs. Lokvidayan Sanghatana
19. Anuradha Bhasin vs. Union of India
20. Gulam Nabi Azad vs. Union of India and ANR
21. Ramleela Maidan incident vs. Home Secretary, Union of India (2012) 5SCC 1

Page 4
AIR 1967 SC 1836: (1967)3 SCR 525
22. Srinivas vs. State of Madras, AIR 1931 Mad 70
23. Satwnat Singh Sawhney vs. Passport
24. Francis Manjooranv. Govt. of India, AIR 1966 Ker 20
25. Choitiram Verhomal Jethawaniv. A.G. Qazi, AIR 1966 Bom 54
26. Maneka Gandhi v. Union Of India, (1978)1SCC 248: AIR 1978 SC 597.

Page 5
B.BOOKS
1. Bare Act, the Constitution of Bharatyanam(Universal Law Publication)
2. Durga Das Basu, Commentary on the Constitution of Bharatyanam(8th Ed., Lexis Nexis).
3. Speacial marriage act, 1954
4. Bharatyanam penal code, 1860
5. J.N Pandey, Constitutional Law of India (55th Ed., Central Law Publication).
6. M.P Jain, Indian Constitutional Law (6th Ed., Lexis Nexis).
7. V N Shukla Constitution of India (12th Ed., EBC)

Page 6
STATEMENT OF JURISDICTION
The petitioner has approached the Hon’ble Supreme Court of bharatyanam, under Special Leave
Petition (SLP) by way of writ petition filed under Article 32 of the Constitution of Bharatyanam
read with Supreme Court rules 2013.
Article 32: Remedies for enforcement of rights conferred by this part:
1. The right to move the Supreme Court by appropriate proceedings for the enforcement of the
rights conferred by this Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including writs in
the nature of habeas corpus, mandamus, prohibition, quo- warranto and certiorari, whichever
may be appropriate, for the enforcement of any of the rights conferred by this Part.
3 Without prejudice to the powers conferred on the Supreme Court by clauses (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.
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

Page 7
STATEMENT OF FACTS
I. The sovereign republic of Bharatyanam is located in the Southern tip of Jesia continent.
Before the independence in 1947 republic of Bharatyanam was the British colony. The
constitution has adopted parliamentary system where in president is the executive head of
the government. The country has diversified religion with Sanatan Dharm , Islamism,
Christendom , Buddhistic , jain dharma and Sikhism and particular has its religious belief
practices , dressing , cultural Outlook , food habits etc. The majority population of 75%
of the republic of Bharatyanam is Sanatan Dharm and other around 24% of population
are from the faith of Islamism , Christianity and JaIn dharama.
II. The constitution of republic of Bharatyanam declares various rights under part 3 such as
right to freedom of religion , right to life and personal liberty etc. For the maintenance of
law and order the republic of Bharatyanam has its own penal code that is Bharatyanam
Penal code 1860. In earlier we read republic of Bharat is the most ethnically and
religiously diverse country in the world and its history is dotted with numerous religious
conflicts and riots. The danger of communal conflicts is ever present it and unlikely to
rain anytime.
III. In October 2019 certain newspapers published a report about love war where
Christendom men and boys target young girls belonging to non Christendom
communities for conversion to Christendom by feigning love. According to his data up to
2000 conversions take place in the past four years having the nature of love war in the
republic of Bharatyanam. For the protection of girls from these types of love wars, the
state of Wonder Pradesh ( one of the largest state of republic of Bharatyanam) was passed
an ordinance that was the wonder Pradesh prohibition of unlawful religious conversion
ordinance 2020. The cabinet of the state of Wonder Pradesh clear the ordinance on 20th
November 2020 following which it was approved and signed by the State Governor on
24th November 2020.
IV. The Wonder Pradesh ordinance make conversion non-bailable with up to 10 years of
imprisonment if undertaken through misinformation , forcefully , Unlawfully or allegedly
fraudulent means and it requires that religious conversions for marriage in Wonder
Pradesh to be approved by district magistrate.
V. There has been much furore over the grounds of violation of individual’s right to marry a
person of one’s choice and being restrictive of the fundamental right to life , autonomy ,
privacy and violation of right to equality based on religion.

Page 8
VI. In December 2020, a young couple named Karishma and Bosco Patterson residing in
theNawabnow the capital of Wonder Pradesh. They expressed their willingness to marry
each other but because of Karishma's family not accepted interfaith marriages and on
other hand, Bosco's family begrudgingly accepted their marriage, so she was decided to
convert into Christendom out of her love and respect for Bosco’s family and faith and
hoping that this family would be more willing to accept their marriage. However it was
decided that conversion would be kept to be as secret from her parents. After the
marriage occurred on 14th February 2021 they were decided to shifted in their separate
apartment in Prayagbad where they happily resided for 3 month.
VII. Bosco’s family were warmly greeted on both of their arrival at home on 15th May 2021.
On that time the state was suffering from corona cases and because of that state can
implement twoweek lockdown from 15th May. In the midst of this Karishma younger
brother fell down from stairs and was put to bed rest , Karishma strongly wished to visit
him and she had requested many times to Bosco and her in laws to allow to meet her
brother but because of limitedtransportation and apprehension of corona cases they did
not permit her to leave.
VIII. Being a frustrated like a prisoner in the house of her on in- laws , after 2 months
Karishma called up her parents and asked them to pick her up. Her family became
extremely angry upon knowing about the details of their marriage and the conversion ,
they suspected that Bosco and his family forced Karishma to convert into different
religion and were now forcefully restraining her against her will. They viewed many
cases of love jihad extensively reported in the state recently. Thus her family went to file
an FIR against Bosco and his family under section 498A and 340 of the BPC as well as
under the wonder Pradesh anti conversion Act in polychromatic Police station. After
information was sent to Bairagi police station situated near to residence of Bosco’s
family, and soon his family member were arrested on 20th July, 2021.
IX. After that the magistrate denied bail to Bosco family and issued a non bailable warrant
against Bosco under section 498A Bosco and his family preferred special leave petition
before the supreme court and also filed a writ petition challenging the validity of Wonder
Pradesh prohibition of unlawful conversion of religious act , 2020.
X. The constitutional bench of supreme court scheduled hearing of both the petitions for
considering the substantial questions of law relating to interpretation of the constitution
and whereas SLP is an admission stage

Page 9
STATEMENT OF ISSUES
I.
WHETHER THE SLP UNDER 136 AND WRIT PETITION UNDER ARTICLE 32 OF THE
CONSTITUTION OF BHARATYANAM FILED BY THE PETITIONER IS
MAINTAINABLE OR NOT.
II.
WEATHER THE ORDINANCE PASSED BY THE STATE OF WONDER PRADESH IS
VIOLATIVE OF THE PART III OF CONSTITUTION OF BHARATYANAM OR NOT.

Page 10
SUMMARY OF ARGUMENT
I. Whether the writ petition filed by the petitioner under Article 32 of the constitution of
Dharmanagar is maintainable?
It is humbly submitted before the Hon’ble court that the writ petition filed under
Article 32 is maintainable because there is an infringement of fundamental rights of
the citizens of Dharmanagar due to the illegal lockdown and communication
blockade. Also it affects the Public interest at large. Petitioner has the Locus Standi
to file the writ under article 32 which has very broad scope and thus Doctrine of
Alternative Remedy does not apply to this case.
II. Whether the Constitution (Application to Mansoul) Order, 2019 is ultra-vires of

constitutional authority?
It is humbly submitted before the Hon’ble Supreme Court of Dharmanagar that the
Constitution (Application to Mansoul) Order, 2019 is tantamount to the President
doing indirectly that he cannot do directly i.e. amending Article 370 through Article
367 because he has no power to amend article 370 directly. Article 370 is a
permanent provision precisely because the constituent assembly of Mansoul dissolved
itself without making such a recommendation. For any constitutional amendment to
be applicable to Mansoul, we need to follow the process under article 368 plus have
an order by the President. Moreover the President can pass an order only in
consultation with the state Government.
III. Whether the illegal lockdown of people and communication blockade is violation of
fundamental rights under Article 19 and 21 guaranteed under Part III of the
constitution?
It is humbly submitted before the Hon’ble Supreme Court of Dharmanagar that due to
the illegal lockdown and communication blockade in the State of Mansoul is leading
to violation of the fundamental rights under Article 19 and 21 guaranteed under Part-
III of the constitution of Dharmanagar.
ARGUMENT ADVANCED

Page 11
I. Whether the writ petition filed by the petitioner under Article 32 of the constitution of
Dharmanagar is maintainable?
It is humbly submitted before the Hon’ble court that the writ petition filed by thepetitioner is
maintainable because [1.1] it involves the issue pertaining to infringement of fundamental rights
and affects public interest at large. [1.2]Also, Petitioner has the Locus Standi to file the writ
under Article 32 which has[1.3]that the instant matter affects the public interest at large[1.4] very
broad scope and thus,doctrine of alternative remedy does not apply to this case. Therefore, the
petition filed by the petitioner is maintainable before the Hon’ble court.
1.1 THAT THE PRESENT ACT INVOLVES THE ISSUE OF INFRINGEMENT OF

FUNDAMENTAL RIGHTS.
It is humbly submitted before the Hon’ble Supreme Court’s jurisdiction to hear PIL cases stems
from its duty to enforce constitutional rights and PIL petitions must be founded on constitutional
claims1. The Court derives its jurisdiction over PIL actions from Article 32 of the Constitution of
Dharmanagar which guarantees “the right to move the Supreme Court by appropriate
proceedings” for the enforcement of fundamental rights. In this case there is violation of
fundamental rights under Article 19 and Article 21.
It is further submitted that the fundamental right to move the court can appropriately described as
the cornerstone of the democratic edifice raised by the constitution. It has also been reiterated in
the case of Fertilizer Corporation Kamgar vs. Union of India2that Article 32 is “an important
and integral part of the basic structure of the Constitution because it is meaningless to confer
fundamental rights without providing an effective remedy for their enforcement, if and when
they are violated. A right without a remedy is a legal conundrum of a most grotesque kind.
Article 32 confers one of the highly cherished rights conferred by the Constitution3.
It is humbly submitted, “Whenever injustice is meted out to a large number of people, the Court
will not hesitate in stepping in4”. When the Court is prima facie satisfied about variation of any
constitutional right of a group of people belonging to the disadvantaged category, it may not
allow the State or the Government from raising the question as to the maintainability of the
petition.
1.2 PETITIONER HAS THE LOCUS STANDI TO FILE THE WRIT PETITION.
It is humbly submitted that Supreme Court in its various rulings has relaxed strict rule of
locusstandi in case of PILand PIL discards the traditional concept of locus standi, which means
that only the person whose legal rights are being violated can approach the court for redress. It is
submitted that the Court should insist upon the bona-fide intention of the public interest
1
Peoples union of democratic right (PUDR) vs. UOI (1983) 1 SCR 456.
2
Fertilizer Corporation Kangar v. Union of India, AIR 1981 SC 344
3
MP Jain Indian Constitutional Law, (2002) pg. no. 703
4
Guruvayur Devaswon vs. CK Ranjan (2003)7 SCC 546
Page 12
litigant5and upon the public interest litigant to satisfy the court about his interest beyond what
belongs to anyone of the thousands and millions of people of this country6.
Any person acting bona fide and having sufficient interest in the proceeding of PIL will alone
have a locus standi and can approach the court to wipe out violation of fundamental rights and
genuine infraction of statutory provisions, but not for personal gain or private profit or political
motive or any oblique consideration7. A writ petitioner who comes to the court for relief in
public interest must come not only with clean hands like any other writ petitioner but also comes
with a clean mind and clean objective 8. In the instant matter the writ petition has been filed in a
bona fides intention and with clean hands.
Therefore, it is submitted that the instant petition has been filed by people acting in bona fide
capacity upon violation of a fundamental right. Hence, the Petitioners have locus standi to file
the instant petition.
1.3 THAT THE INSTANT MATTER AFFECTS THE PUBLIC INTEREST AT LARGE.
It is humbly submitted that according to the Supreme Court guidelines, a PIL filed by the
Petitioner in the Court should not be for personal gain or private profit or out of political
motivation or other oblique consideration9. The view has therefore been taken by the Courts in
many decisions that “whenever there is a public wrong or public injury caused by an act or
omission of the State or a public authority which is contrary to the Constitution or the law, any
member of the public acting bona fide and having sufficient interest can maintain an action for
redressal of such public wrong or public injury10.”
It is humbly submitted that, the Petitioners have filed the petition in bona fide belief and with a
view to vindicating the cost of justice that such a policy will be against the fundamental right of
the citizens of this country. Hence, it is submitted that the Petitioners has filed the present
petition with a bona fide interest for the fundamental rights of the society. Further, the Petitioners
have no wrongful or undeclared interest that might void this PIL.
1.4 ARTICLE 32 HAS VERY BROAD SCOPE AND THUS, DOCTRINE OF
ALTERNATIVE REMEDY DOES NOT APPLY TO THIS CASE.
Article 3211 of the Constitution of Dharmanagar is a constitutional remedy, which can be utilized
by any person when his fundamental rights guaranteed under Part-III of Constitution are violated
by the state and it is only available against the state not against the private person. The
petitioners (People’s Welfare Organization) filed the writ petition in the Hon’ble Supreme Court
because it’s jurisdiction is all over Dharmanagar, also this instant ordinance was violating the
5
Forward Construction Company vs. Prabhat Mandal Andheri , 1986 AIR SC 391
6
K Hanumantha Rao vs. Prl. Sub-judge , 1997 (4) ALT 444
7
Dattaraj Nathuji Thaware v. State of Maharashtra (2005)1 SCC 590, 592-93; AIR SC 540
8
Y Akbar Ahmed vs. the Secretary To Government of Tamil Nadu and Others on 4th October,2018
9
Delhi Municipal Workers vs. MCD, AIR 2001 Del 68; SomadarshanMohantyv. UOI, 2003 II OLR 452
10
S.Shyam Prasad Rao vs. Union Government of India , 1998 (6) ALD 349
11
INDIAN CONST.
Page 13
Fundamental Rights of the citizens which is not limited to the state but as to the whole of
Dharmanagar. Therefore, the petitioner moved to the Supreme Court not to any state High court.
Arguendo, where the petitioner might have moved a court in his private interest and for
redressal of the personal grievance, the Court in furtherance of public interest may treat it as a
necessity to enquire into the state of affairs of the subject of litigation in the interest of justice.
Thus, a private interest case can also be treated as public interest case 12. Therefore, in the present
case, the petitioner has locus standi to file the writ petition. He has not only filed the writ petition
for his personal interest but for the interest of the citizens of Mansoul.
In the present case, the doctrine of alternative remedy does not apply, because here in this case
the elected government is itself doing wrong with the people of Dharmanagar, so redressed by
petitioning the executive is not feasible that is why they filed the writ petition in the Hon’ble
Supreme Court under Article 32 of the Constitution. The petitioner in the present case has
approached the court not only with clean hands but also with a clean mind and clear objective.
The SC held that a writ petition cannot be dismissed on the only ground of existence of
alternative remedy. In Asst. Collector, C .E. Chandan Nagar vs. Dunlop India Limited, the Court
maintaining the above view held that Article 226 is not meant to short circuit or circumvent
statutory procedures. It is only where statutoryremedies are entirely well suited to meet the
demands of extraordinary situations as for instance, where the very virus of the statute is in
question or where private or public wrongs are so inextricably mixed up and the prevention of
public injury and indication of public justice required it that recourse may be had to Article
226 of the constitution.
II .Whether the Constitution (Application to Mansoul) Order, 2019 is ultra-vires of

constitutional authority?
“Where freedom is menaced justice threatened or where aggression takes place, we cannot be
and shall not be neutral.”
- Pandit Jawahar Lal Nehru
The doctrine of Ultra Vires like the law of natural justice is not a codified law and has arisen
from the various judicial pronouncements. Although the doctrine is not a direct enactment made
by the legislatures, the same has a lot of importance in the contemporary period, keeping in mind
the various developments happening in constitutional law and enactment of various socio-
economic laws in India. One can also observe a change that took place gradually in the attitude
of the judiciary towards the doctrine over a period of time. Initially, the doctrine was not given
any attention by the Judiciary. The Judicial trend regarding the Doctrine of Ultra Vires is quite
similar to that of the British Authorities. Nawal Kishore, C.J. in his judgment stated that the word
“ultra vires only means something has been done by a person or by a body of persons which was
beyond his or their powers”. In another case, it was stated that “The expression ultra vires which
strictly spoken implies an absence of jurisdiction, is often used to imply an absence of
competency, hence the use of expression such as void, nullity, null and void without jurisdiction”.
12
INDIAN BANK ASSOCIATION BOMBAY vs. DEVKALA CONSULTANCY SERVICE , 2004 11 SCC 1 , 19
Page 14
Satish Chandra J. in the case of Anand Prakash & Others v. Asst. Registrar held that “The
essence of the doctrine of ultra vires is that the act is done in excess of powers possessed by the
person in law. This doctrine proceeds on the basis that the person has limited powers. If a
person exists for a limited purpose alone and that purpose is defined by law whether expressly
and, or by implications, the doctrine of ultra vires governs him and confines him to that purpose,
the person can act within the four corners of its contesting instrument. The doctrine prevents him
from acting beyond the conferred powers”. In P. Janardhan v. Union of India the court said that
“The term ultra vires simply means beyond the power or lack of power. An act is said to be ultra
vires when it is excess of the power of the person or authority doing it”.
2.1According to the Constitution of India, Article 370 provides temporary provisions to the state
of Mansoul, granting it special autonomy. The article says that the provisions of Article 238,
which was omitted from the Constitution in 1956 when Indian states were reorganized, shall not
apply to the state of Jammu and Kashmir. Dr.B.R. Ambedkar, the principal drafter of the Indian
Constitution, had refused to draft Article 370. In 1949, the then Prime Minister Jawaharlal Nehru
had directed Kashmiri leader Sheikh Abdullah to consult Ambedkar (then law minister) to
prepare the draft of a suitable article to be included in the Constitution. Article 370 was
eventually drafted by Gopalaswami Ayyangar. Ayyangar was a minister without portfolio in the
first Union Cabinet of India. He was also a former Diwan to Maharajah Hari Singh of Jammu
and Kashmir Article 370 is drafted in Amendment of the Constitution section, in Part XXI, under
Temporary and Transitional Provisions. The original draft explained "the Government of the
State means the person for the time being recognized by the President as the Maharaja of Jammu
and Kashmir acting on the advice of the Council of Ministers for the time being in office under
the Maharaja's Proclamation dated the fifth day of March, 1948." On November 15, 1952, it was
changed to "the Government of the State means the person for the time being recognized by the
President on the recommendation of the Legislative Assembly of the State as the Sadr-i-Riyasat
(now Governor) of Jammu and Kashmir, acting on the advice of the Council of Ministers of the
State for the time being in office." Under Article 370 the Indian Parliament cannot increase or
reduce the borders of the state.
It is humbly submitted before the Hon’ble Supreme Court of Dharmanagar that Article 370(3)
2.1.1) Provided13that power to abolish the operation of Art.370 -: Art.370 (3) provides that
notwithstanding anything in the foregoing provisions of this article, the President may, by public
notification, declare that the article shall cease to be operative. But the iPresident cannot issue
such a Notification without the recommendation of the Constituent Assembly of that state.
"The effect of the application of the present article (Article 370) has to be judged in the light of
its objects and its terms considered in the context of the special features of the constitutional
relationship between [the] State and India. The Constitution makers were obviously anxious that
the said relationship should be finally determined by the Constituent Assembly of the State
itself..." (Prem Nath Kaul vs. the State ofJammu and Kashmir, AIR 1959 SC 749)
13
Constitutional Law of India by Dr. J.N.Pandey pg. no. 791
Page 15
2.2) Clause 5 of the Instrument of Accession states that “my Instrument of Accession cannot be
varied by any amendment of the act or of Dharmanagar Independence Act unless such
amendment is accepted by me by an Instrument supplementary to this Instrument.”
The Constitution of Dharmanagar is the most efficiently written Constitution any country of the
world has ever produced. It contains within it the best provisions of other Constitution. Members
of our Constituent Assembly had to be very reasonable in producing our Constitution owing to
the diversity of the nation. India is called the land of Unity in Diversity and this can be attributed
to our beautiful Constitution and our brilliant Constitution makers.
2.3) In article 370 clause 3 was added only to give permanency to this article as the constituent
assembly of Mansoul dissolved after completing its work on 26 January, 1956 now if you like to
read that Mansoul constituent assembly means legislative or state assembly and all those power
now rest with Parliament because state was going through a Presidential rule. It is nothing but a
constitutional tragedy. Without the concurrence of Mansoul constituent assembly, constituent
assembly which does not exist. You cannot abrogate Art.370, which is the wrong interpretation
of Constitution and it is an insult to the framers of the Constitution.
The continued application of article 370 was questioned in Sampat Prakashvs.State of
J&K14where the Hon’ble Supreme Court relying mainly on clause (3) of article 370 which lays
down that article 370 would cease to be operative or would be operative only when the President
issues a notification to that effect on the recommendation of the Constituent Assembly of the
state. It was found that no such recommendation had been made by the constituent assembly of
the state. It was pointed out that article 370 should be held to be continuing enforce because the
situation that existed when this article was incorporated in the constitution had not materially
altered, and the purpose of introducing this article was to empower the President to exercise his
discretion in applying the Indian Constitution while that situation remained unchanged. A
applying the Indian Constitution while that situation remained unchanged.
In a judgment of SBI vs. Santosh Gupta with SBI vs. ZaffarUllah Nehru15.
The Hon’ble Supreme Court held that “it is important to note that Article370 (2) does not in any
matter state that the said Article shall cease on the completion of the work of the Constituent
Assembly or its dissolution. Having regards to all these factors , the court clearly held that
though the marginal note refers to article370 as only a temporary provision , it is in fact in
current usage and will continue to be in the force until the specified event in the sub clause(3) of
the said article takes place.”
2.4) it is further submitted that the Article 3 of the Constitution of Dharmanagar states that :
Provided that no bill for the purpose shall be introduced in either House of Parliament except on
the recommendation of the President and unless, where the proposal contained in the Bill affects
the area , boundaries or name of any of the States, the Bill has been referred by the President to
the Legislature of that State for expressing its views thereon within such period as may be
specified in the reference or within such further period as the President may allow and the period
so specified or allowed has expired.
14
February 6 , 1969 AIR 1153
15
SBI vs. Santosh Gupta with Zaffar Ullah Nehru and anr. Etc.(2015)
Page 16
Now Art. 3 mandates that there should be compulsory consultation with State Legislative
Assembly and Legislative Council whose boundary are being redrawn. Now the government
decided that since Legislative Assembly was not in the existence, the power of Legislative
Assembly vested in Parliament and therefore Legislative Assembly equated the Parliament
completely ignoring the spirit of Art. 3.
The Hon’ble Supreme Court in Babulal vs. State of Bombay16 held that this is an important
departure from the strict federal principal. It is a glaring example of the inequality between the
Union on the one side and the States on the other.
16
28 August, 1959 AIR 1960 SC 51
Page 17
III. Whether the illegal lockdown of people and communication blockade is violation of
fundamental rights under Article 19 and 21 guaranteed under Part III of the Constitution?
It is humbly submitted before the Hon’ble Supreme Court of Dharmanagar that freedom of
speech and expression means the right to express one’s own conviction and opinions freely by
words of mouth, writing, printing, pictures or any other mode. It thus includes the expression of
one’s ideas through any communicable medium or visible representation, such as, gesture, signs,
and the like.
The expression connotes also publication and thus the freedom of the press is included in this
category. Free propagation of ideas is the necessary objective and this may be done on the
platform or through the press. The freedom of propagation of ideas is secured by freedom of
circulation, liberty of circulation is essential to that freedom as the liberty of publication. Indeed
without circulation the publication would be of little value17.
The freedom of speech and expression includes liberty to propagate not one’s views only. It also
includes the right to propagate or publish the views of other people 18, otherwise this freedom
would not include the freedom of press.
Freedom of speech and expression indispensable in a democracy. In Romesh Thappar vs. State
ofMadras19. PatanjaliSastri J., rightly observed that -
“Freedom of speech and of the press lay at the foundation of all democratic organizations. For
without free political discussion no public education, so essential for proper functioning of the
process of popular government, is possible.”
III.1 Internet shutdown, illegal lockdown is violation of Fundamental Rights
It is further humbly submitted before the Hon’ble Supreme Court of Dharmanagar

that the internet restrictions, communication blockade not only impact the free speech
of individuals but also infringes on their right to trade guaranteed under Article 19(1)
(g).Therefore, a less restrictive measures such as restricting only social media
websites like Whatsapp, Facebook should and could have been passed. ‘Least
restrictive measures that can be passed and while imposing the restrictions, the rights
of individual needs to be balanced against the duty of the State to ensure security. The
State must ensure that measures are in place that allows people to continue with their
lives such as public transportation for work and schools, to facilitate business, etc.
Wide restrictions imposed by the State are in contravention of the aforementioned
policy. Freedom of speech and expression meant to allow the people to discuss topic
of the day, including the abrogation of the Article 370 of the Constitution. The
restrictions imposed that were meant to be temporary lasted for more than 100 days
which fact should be taken in account by this Hon’ble Court while deciding the
17
Romesh Thappar vs. State of Madras AIR 1950 SC 124; LIC OF India vs. Manubhai D Shah (1992) 3 SCC 637
18
Srinivas vs. State of Madras, AIR 1931 Mad 70
19
AIR 1950 SC 124

Page 18
matter. It is further submitted that notwithstanding the expediency of the situation, the
necessity of a measure must be shown by the State. The people have the right to
speak their views, whether good, bad or ugly
In Indian Express VS Union of India20, the Hon’ble Supreme court held that
freedom of print medium is covered under the freedom of speech and expression.
In Odyssey Communications pvt. Ltd VS Lokvidayan Sanghatana 21, it was held that
the right of citizens to exhibit films on Doordarshan. Subject to the terms and
conditions to be imposed by the Doordarshan, is a part of fundamental right of
freedom of expression guaranteed under Article 19 (1) (a).
And in the recent judgment of Hon’ble Supreme Courton 10th January, 2020 in
Anuradha Bhasin vs. Union Of India 22 and Gulam Nabi Azad vs. Union Of India
and ANR23. The Hon’ble Court held that -:
a. We declare that the freedom of speech and expression and the freedom to practice
any profession or carry on any trade, business or occupation over the medium of
internet enjoys constitutional protection under Article (19) (a) and Article (19)
(g). The restrictions upon such fundamental rights should be in consonance with
the mandate under Article (19) (2) and (6) of the Constitution, inclusive of the test
of proportionality.
b. The power under Section 144, Cr.P.C. cannot be used to suppress legitimate
expression of opinion or grievance or exercise of any democratic rights.
III.2 Restrictions under Section 144 of Cr.P.C. leading to violation of

Fundamental Rights.
“As emergency does not shield the actions of Government completely;

disagreement does not justify destabilization; the beacon of rule of law shines
always”
Article 21-: Protection of life and personal liberty-No person shall be deprived of his life and
personal liberty except according to procedure established by law.
It is humbly submitted before the Hon’ble Supreme Court that section 144 Cr.P.C. is one of the
mechanisms that enable the state to maintain public peace. It forms part of the chapter in the
Criminal Procedure Code dealing with “Maintenance of Public Order and Tranquility” and is
contained in the sub-chapter on “urgent cases of nuisance or apprehended danger”. The structure
20
( 1985) 1 SCC 641
21
(1988) 3 SCC 410
22
10th January, 2020(writ petition , civil no. 1164 of 2019)
23

Page 19
of the provision shows that this power can only be invoked in “urgent cases of nuisance or
apprehended danger”.
Section 144 Cr.P.C. cannot be used as a tool to prevent legitimate expression of opinion or
grievance or exercise of any democratic right. Our Constitution protects the expression of
divergent views, legitimate expression and disapproval, and this cannot be basis for invocation
of section 144 Cr.P.C. unless there is sufficient material to show that there is likely to be an
incitement to violence or threat to public safety or danger.It ought to be noted that the provision
of section 144 Cr.P.C. will only be applicable in a situation of emergency for the purpose of
preventing obstruction and annoyance or injury to any person lawfully employed.
The Impositions of restrictions under Section 144, Cr.P.C. there had to be a circumstance
showing that there would be an action which will likely create obstruction, annoyance or injury
to any person or will likely to cause disturbance of the public tranquility and the government
could not have passed such orders in anticipation or on the basis of a mere apprehension.
Section 144 of the Cr.P.C. deals with immediate prevention and speedy remedy therefore, before
invoking provision the statutory authority must be satisfied regarding the existence of the
circumstances showing the necessity of an immediate action24
In Satwnat Singh Sawhneyvs. Passport25 officer, the court held that the right to travel abroad is
included with the expression “Personal Liberty” and, therefore, no person can be deprived of his
right to travel except according to the procedure established by law. Since a passport is essential
for the enjoyment of that right, denial of a passport amounts to deprivation of personal liberty. In
the absence of any procedure prescribed by the law of land sustaining the refusal of a passport to
a person, its refusal amounts to an unauthorized deprivation of personal liberty guaranteed by
Article 21.
And in the recent judgment of Hon’ble Supreme Court on 10th January, 2020 in Anuradha
Bhasin vs. Union Of India26and Gulam Nabi Azad vs. Union Of India and ANR 27. The Hon’ble
Court held that -:
a. The power under Section 144, Cr.P.C, cannot be used to suppress legitimate
expression of opinion or grievance or exercise of any democratic right.
24
Ramleela Maidan incident vs. Home Secretary, Union of India (2012) 5SCC 1
25
AIR 1967 SC 1836: (1967)3 SCR 525; Francis Manjooran v. Govt. of India, AIR 1966 Ker 20; Choitiram
Verhomal Jethawani v. A.G. Qazi, AIR 1966 Bom 54; see also , Maneka Gandhi v. Union Of India ,(1978)1SCC
248 : AIR 1978 SC 597.
26
27

Page 20
i
PRAYER
Wherefore, in the light of the facts presented, issues raised, argument advanced and
authorities cited, it is most humbly prayed before the Hon’ble Supreme Court of
Dharmanagar that the writ petition filed by the petitioner be allowed that the court be pleased
to issue an appropriate writ, order or direction and thereby in the following manner .
1. To declare (Constitution Application to Mansoul) order 2019 as unconstitutional.
2. To order the Government of Dharmanagar to take appropriate measures and safeguard for the
protection of Fundamental Rights of the citizens.
And also
Pass any other relief that this Hon’ble Court may deem fit in the interests of justice, equity
and good conscience.
All of which is most humbly submitted.

Council for the Petitioner.

2nd Intra-Moot Court Competition Memorial

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2ND INTRA-MOOT COURT COMPETITION, 2021

TEAM CODE-: TC-08

2ND INTRA-MOOT COURT COMPETITION, 2021

BEFORE THE HON’BLE SUPREME COURT OF BHARATYANAM

BOSCO PATTERSON & ORS.

MEMORIAL ON BEHALF OF PETITIONER

MEMORIAL ON BEHALF OF THE PETITIONER

MEMORIAL ON BEHALF OF PETITIONER

4. SCC SUPREME COURT CASE

6. AIR ALL INDIA REPORTER

7. J&K JAMMU & KASHMIR

9. BPC BHARATYANAM PENAL CODE

10. SC SUPREME COURT

MEMORIAL ON BEHALF OF PETITIONER

5. K. HanumanthaRao v. Prl Sub-Judge, 1997 (4) ALT 444

7. Y.Akbar Ahmed v. The SECRETARY to Government of Tamil Nadu and others on 4

8. Delhi Municipal Workers Union v. MCD, AIR 2001 Del 68

9. Somdarsan Mohanty v.Union of India, 2003 II OLR 452

10. S.Shyamprasad Rao v. Union of India, 1998(6) ALD349.

12.Sampat Prakash vs. State of J&K

14. Babulal vs. State of Bombay

15. Romesh Thappar vs. State of Madras AIR 1950 SC 124

16. LIC of India vs. Manubhai D. Shah, (1992) 3 SCC 637

17. Indian Express vs. Union of India

18. Odyssey Communications pvt. Ltd vs. Lokvidayan Sanghatana

19. Anuradha Bhasin vs. Union of India

20. Gulam Nabi Azad vs. Union of India and ANR

MEMORIAL ON BEHALF OF PETITIONER

AIR 1967 SC 1836: (1967)3 SCR 525

22. Srinivas vs. State of Madras, AIR 1931 Mad 70

23. Satwnat Singh Sawhney vs. Passport

24. Francis Manjooranv. Govt. of India, AIR 1966 Ker 20

25. Choitiram Verhomal Jethawaniv. A.G. Qazi, AIR 1966 Bom 54

MEMORIAL ON BEHALF OF PETITIONER

MEMORIAL ON BEHALF OF PETITIONER

Article 136: Special leave to appeal by the Supreme Court:

MEMORIAL ON BEHALF OF PETITIONER

MEMORIAL ON BEHALF OF PETITIONER

MEMORIAL ON BEHALF OF PETITIONER

MEMORIAL ON BEHALF OF PETITIONER

II. Whether the Constitution (Application to Mansoul) Order, 2019 is ultra-vires of

MEMORIAL ON BEHALF OF PETITIONER

1.1 THAT THE PRESENT ACT INVOLVES THE ISSUE OF INFRINGEMENT OF

II .Whether the Constitution (Application to Mansoul) Order, 2019 is ultra-vires of

III.1 Internet shutdown, illegal lockdown is violation of Fundamental Rights

It is further humbly submitted before the Hon’ble Supreme Court of Dharmanagar

MEMORIAL ON BEHALF OF PETITIONER

III.2 Restrictions under Section 144 of Cr.P.C. leading to violation of

“As emergency does not shield the actions of Government completely;

MEMORIAL ON BEHALF OF PETITIONER

MEMORIAL ON BEHALF OF PETITIONER

1. To declare (Constitution Application to Mansoul) order 2019 as unconstitutional.

All of which is most humbly submitted.

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