KK LUTHRA MOOT COURT

COMPETITION, 2022

Before

THE HON’BLE SUPREME COURT OF STAN

VARSHA
(Petitioner)

Versus

UNION OF STAN
(Respondent)

Under Article 136 of the Constitution of Stan

MEMORIAL ON BEHALF OF THE PETITIONER

 TABLE OF CONTENTS

S.no. CONTENTS Page No.

1. INDEX OF AUTHORITIES 3

2. STATEMENT OF JURISDICTION 5

3. STATEMENT OF FACTS 6-7

4. STATEMENT OF ISSUES 8

5. SUMMERY OF ARGUMENTS 9

6. ARGUMENTS ADVANCED 10-14

7. PRAYER 15
 INDEX OF AUTHORITIES

STATUTE:

S.no. STATUTE
The Stan Penal Code, 1860 (Act 45 Of 1860)

The Extradition Act, 1962. Act No. 34 Of 1962

The Constitution of Stan, 1950

CONVENTIONS:

S.no. Conventions
Vienna Convention on Consular Relations(1963)
International Covenant on Civil and Political Rights (1966)
Model Treaty on Extradition 1990

CONFERENCES:

S.no. Conferences
UN Human Rights Committee (HRC)
United Nations General Assembly Resolution RES/45/116
United Nations General Assembly Resolution RES/45/116

CASES:

S.no. Cases
Suk Das vs. Union Territory of Arunachala Pradesh, 2 (1986) SCC 401
Ten Human Rights Organisations v The United Kingdom 24960/15
Tara Singh Gopi Chand v. The State (1951)
Ram Nandan v. State of Uttar Pradesh (1959)
Romesh Thapar v State of Madras1950 AIR 124
Vijay Mallya v. Government of India[2020] EWHC 924 (Admin)
State of West Bengal v. Jugal Kishore AIR 1969 SC 1171
WEBSITES:

S.no. Websites

• Hein Online, https://home.heinonline.org/

• Lexis Advance, https://advance.lexis.com/
• Manupatra, http://www.manupatrafast.com/
• SCC Online, http://www.scconline.com/
• Westlaw India, http://www.westlawindia.com/
• IndianExpress, https://indianexpress.com
 STATEMENT OF JURISDICTION

That jurisdiction of the Hon’ble Supreme Court is made under Article 136 of the Constitution of Stan,
1949

Article 136 in The Constitution of Stan

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, and sentence or order
passed or made by any court or tribunal constituted by or under any law relating to the Armed
Forces
 STATEMENT OF FACTS

1. The Republic of Stan is a democratic country with enormous international respect. Stan has
six provinces. The Republic of Stan’s army and air force is largely based out in Province B
and E, and while it’s Navy is based out of ports in Eastern Province.

2. The Republic of Stan also has a large paramilitary force based out of Province A and D. The
Eastern Province It contributes 67% of Stan’s federal tax collection. Stan’s legal system has
been based on the common law system and largely modeled on the Indian legal system.

3. Varsha T. is a 47 year old journalist from Stan and is also a celebrated author. She also holds
citizenship of Brittany as Stan allows it. Varsha has published several books, including in
March 2020, a trilogy of controversial fiction novels popularly known as the Sedition
Novels with Shavar as the titular character.

4. The novels were listed as bestsellers across Continental capitals and Varsha spent most of
the summer of 2020, travelling across the Continent meeting politicians, celebrities and
intellectuals throughout Continental capitals. There was also talk that Varsha might be in
line for a Nobel nomination. Varsha was celebrated as a visionary and a future leader of the
Eastern Province.

5. In 2021, the popularity of the novels had sparked a debate in the Republic of Stan over the
Accession Agreement and the Old Fee. Old disputes over whether the Republic of Stan
needed the Eastern Province or whether the Eastern Province needed the Republic of Stan
were reignited.

6. Towards October 2021, many political leaders from Provinces A, B and E demanded that
the Sedition Novels be banned and Varsha be forced to make a public apology.

7. Under public pressure, in December 2021, Varsha released a press statement inter alia
saying that, ‘… the Sedition Novels were a work of fiction and any attempt to draw parallels,
while a welcome exercise of the freedom of thought, is just a hypothetical exercise … Stan
is not Nod and Eastern Province is not the Far Northern Province … Shavar is a fictional
heroine living 10,000 years in the future! While I am proud of her and what she believed in,
I do not hold any of her beliefs and I do not condone any of the methods of violence used in
the Novels. All speculation around the Novels is unwarranted … Ethereum is not water! …
I only hope people have actually read the Novels, before running to the Press for their hot
takes …’

8. In April 2021, she had sold the rights to the Sedition Novels to a popular film production
company and in one of her interviews in 2022, Varsha claimed that she would not
directly financially benefit from the release of ‘The Chronicles of Shavar.’ Varsha had spent
most of April and May 2022 in Brittany City and had reportedly met with the Continental
negotiating team responsible for the talks with the Republic of Stan.
9. On 23 June 2022, Snoopy made a public announcement that it had found a commercially
viable way to desalinate the sea water off the coast of the Eastern Province and the first city-
serving desalination plants could come online within six months. The stock prices of Snoopy
hit the upper circuits at the Brittany City Stock Exchange within two hours of the
announcement and ratings for Stan sovereign bonds began to plummet.

10. In Brittany and on 24 June 2022 itself, Snoopy announced that it was about to approach the
stock exchange for a fresh listing of shares. That would lead to the value of Snoopy exceeding
a market capitalization of over USD 500 billion according to the market analysts.

11. The first show of ‘The Chronicles of Shavar,’was scheduled on 25 June 2022 at 11.00 am at
the largest B City theatre. By 2.00 pm on 25 June 2022, based on the social media
messages trickling out of theatres across Stan, riots had broken out across Province B and
Province C, and also in the Eastern Province. More than 1500 persons, including women and
children were killed in the ensuing violence in Province B alone. More than 700 people
were stated to have been killed in the Eastern Province as a result of the violence, including
stampedes near water companies and public water resources.

12. On 10 July 2022, the Prime Minister of Stan declared a state of emergency in the Eastern
Province and announced that no ex gratia payment would be made to anyone from Eastern
Province, and that recoveries of the Old Fee were sufficient to take care of people from
the Eastern Province.

13. On 15 July 2022, reports emerged from Brittany that a group of businessmen promoting a
hedge fund, called HedgeFund, had offered to buy Snoopy for USD 750 billion. Varsha and
Surya sold their shareholding in Snoopy to HedgeFund for an undisclosed amount.

14. On 16 July 2022, the erstwhile Chief Minister of the Eastern Province was assassinated and
the Prime Minister of Stan announced that the Centre had complete control over the Eastern
Province and its ports.

15. On 25 June 2022, Province B recorded a First information report (under S.154 Stan Code
of procedure for investigations and trials (akin to the Indian CrPC) (FIR No. 17/2022) under
Section 124A of the Stan Penal Code, 1860 (in pari materia with the Indian Penal Code,
1860 but is also punishable by death.

16. On 01 August 2022, Stan moved Brittany authorities for Varsha’s extradition to answer
charges under FIR 17/2022. Stan made an offer to Brittany to speed up the extradition
process. The Ambassador of Stan to Brittany, on behalf of Stan, stated that the Republic of
Stan was willing to undertake that Varsha would not be given the death penalty, if found
guilty. The extradition agreement (dated 14 August 2022) allowed for Varsha to be
extradited to Stan.

17. Varsha’s lawyers also made a plea challenging the judgment, invoking the extraordinary
jurisdiction of the Supreme Court to consider the same even as the sentencing was yet to
conclude. While notice was expected to be issued on the first plea, surprisingly, the Court
agreed to hear even the second issue and directed the Government to file its response.
 STATEMENT OF ISSUES

Issue 1- As per customs and statues pertaining to extradition, was Varsha’s extradition legal?
 SUMMARY OF ARGUMENTS

Issue 1- As per customs and statues pertaining to extradition, was Varsha’s extradition legal?
It is submitted before this hon’ble court that the extradition of Varsha, hereinafter referred to as,
the Petitioner, as per customs and statues pertaining to extradition was not legal . Principles of Dual
criminality, specialty and political exception applies to the instant case and also various
conventions such as Vienna Convention and International Covenant on Civil and Political Rights.
 ARGUMENTS ADVANCED

I- It is submitted before this hon’ble court that the extradition of Varsha, hereinafter referred to as, the
Petitioner, as per customs and statues pertaining to extradition was not legal. According to Black’s
Law Dictionary1, extradition means: ―The surrender by one State or Country to another of an
individual accused or convicted of an offence outside its own territory and within the territorial
jurisdiction of the other, which, being competent to try and punish him, demands the surrender. Thus,
in nutshell, extradition may be defined as: the act of sending, by authority of law, a person accused of
a crime to a foreign jurisdiction where the crime was committed, in order that he may be tried there.
In Oppenheim’s International Law2, the expression extradition has been defined as follows:
―Extradition is the delivery of an accused or a convicted individual to the State where he/she is
accused of or has been convicted of a crime, by the State on whose territory he/she happens for the
time to be. Whereas Starke3, defines the term “extradition” as the process whereby under treaty or
upon a basis of reciprocity, one state surrenders to another state at its request a person accused or
convicted of a criminal offence committed against the laws of the requesting state, such requesting
state being competent to try the alleged offender
II- It is humbly submitted before this hon’ble court that the republic of stan did not respect the terms of
the extradition agreement and has thereby violated international customs, norms statutes and
conventions.

Principles albeit the Law of Extradition:

a. Principle of Double or ‘Dual’ Criminality: This principle (also known as “Dual Criminality”) states
that, extradition is available only when the act in question is an offence in the jurisdictions of both the
States (the requesting State and the State requested). The rationale behind this principle is that the
requested State should be at liberty to refuse to extradite the fugitive offender if they do not view the
conduct of the fugitive offender as a criminal act.
b. Principle of Speciality: Under the "principle of speciality,” a state which has received a criminal
defendant pursuant to an extradition treaty may try the defendant only for those offenses for which
he or she was extradited.4

1
Black’s Law Dictionary 983 (9th ed. 2009)
2
Oppenheim's International Law, Vol. I, Peace (2 vols.) (9th ed.). Edited by Sir Robert Jennings and Sir Arthur Watts. Burnt Mill:
Longman, 1992.
3
Starke, An introduction to international, 339
4
1992 International Extradition, the Principle of Speciality, and Effective Treaty Enforcement - Kenneth E. Levitt. MINNESOTA LAW
REVIEW Vol. 76:1017
 c. Principle of Political Exception: Request albeit extradition must be declined if the real purpose of
the request made is to punish the person requested for his political opinion rather than for the crime
committed by him. Political offences exception holds that a person cannot be extradited for an offence
of political character.
The Hon’ble Supreme Court of India, in the case of, State of West Bengal v. Jugal Kishore5, defined
extradition as the surrender by one State to another of a person desired to be dealt with for crimes of
which he has been accused or convicted and which are justiciable in the courts of the other State.

Law relating to extradition in India is governed by the Extradition Act, 19626 and the Extradition
Treaties obtaining between India and other countries. By virtue of Section 34 of the 1962 Act, the
Extradition Act of 1962 has extra-territorial jurisdiction, that is, an extradition offence committed by
any person in a Foreign State shall be deemed to have been committed in India and such person shall
be liable to be prosecuted in India for such offence. As per Section 216 of the Stan Penal Code, 18607
read with the Constitution of Stan, 19508 (Schedule VII, List I, Item 18)

III- It is humbly submitted before this Hon’ble court that as per the United Nations General Assembly
Resolution RES/45/1169 and subsequently amended by General Assembly Resolution 52/810 where
the model which adopted the ‘Model Treaty on Extradition’ contained in the annex to the said
resolution as a useful framework that could be of assistance to States interested in negotiating and
concluding bilateral agreements aimed at improving cooperation in matters of crime prevention and
criminal justice. As per Article 2 of the Model Treaty on Extradition11, which states that, “ For the
purposes of the present Treaty, extraditable offences are offences that are punishable under the laws
of both Parties by imprisonment or other deprivation”, It is humbly brought to the esteemed attention
of this Hon’ble Court that Section 124A of Stan Penal Code (SPC)12, which mainly deals with sedition,
is not an offence in the surrendering state, which is in this matter, Brittany. The said offence of Sedition
was abolished in Brittany through the Coroners and Justice Act, 2009, and hence there was no
Principle of Dual Criminality followed making the treat not legal as per international law and customs

5
AIR 1969 SC 1171
6
The Preamble of the 1962 Act describes it as follows: ―An Act to consolidate and amend the law relating to the extradition of
fugitive criminals and to provide for matters connected therewith or incidental thereto.‖ Scheme of the Act: The 1962 Act comprises
of 37 Sections, divided into 5 Chapters. Chapter I contains Sections 1 to 3. Section 1 provides for: the Short Title, Extent and
Commencement of the Act; Section 2 contains definitions of certain important expressions; and Section 3 provides for the
application of the 1962 Act to ‗Foreign States‘ and ‗Treaty States‘. Chapter II contains Sections 4 to 11; it deals with extradition of
fugitive criminals to Foreign States to which Chapter III does not apply. Chapter III contains Sections 12 to 18, this Chapter deals with
the return of fugitive criminals to Foreign States with which India has Extradition Arrangements. Chapter IV and Chapter V deal with,
Surrender or return of accused or convicted persons from Foreign States and Miscellaneous Matters, respectively.
7
The Stan Penal Code, 1860 (Act 45 Of 1860) ), s.216
8
The Constitution of India, 1950
9
RES/45/116
10
RES/52/8
11
UN General Assembly, Model Treaty on Extradition : resolution / adopted by the General Assembly, 14 December 1990,
A/RES/45/116, available at: https://www.refworld.org/docid/3b00f18618.html [accessed 20 October 2022
12
The Stan Penal Code, 1860 (Act 45 Of 1860) ), s.124A
 pertaining to extradition. In the infamous case of Vijay Mallya v. Government of India13, Dual
criminality was considered as an essential element of the international norms.
IV- It is humbly submitted before this Hon’ble court that as per the Article 3 of the Model Treaty on
Extradition, under the heading of mandatory grounds for refusal, the principle of political exception
is reiterated, Article 3 states. “(a) If the offence for which extradition is requested is regarded by the
requested State as an offence of a political nature.”14 The hon’ble trial court erred in its reasoning
while terming -The trilogy of fiction novels popularly known as the Sedition Novels as seditious in
nature rather they were pure fictional works and as it has been reaffirmed by the statement of the
Petitioner again and again and it had nothing to do with the unrest or rioting happening in the
Provinces rather the Petitioner was premediated to be safeguard the officials of the stan government
which seem to be the Centre of the violation of Brittany securities law financial case usurping in
Brittany with respect to Snoopy tech and its shares, government of Stan used the Petitioner as a tool
to get rid of the substantial evidence against them and making the Petitioner as a scape goat for their
own wrongdoings.
V- It is brought to the esteemed attention of this Hon’ble Court that the frivolous allegation against the
Petitioner of ‘waging a war against the state’ by the Republic of Stan is against the international norms
and customs of common law jurisdiction and world at large. Article 19 of the International
Covenant on Civil and Political Rights ( ICCPR)15 which provides, that: ‘2. Everyone shall have
the right to freedom of expression; this right shall include freedom to seek, receive and impart
information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the
form of art, or through any other media of his choice” The Hon’ble Supreme Court of India in the
case of Romesh Thappar v State of Madras16 held that “criticism of the government exciting
disaffection or bad feelings towards it, is not to be regarded as a justifying ground for restricting the
freedom of expression and of the press, unless it is such as to undermine the security of or tend to
overthrow the state.” the Punjab and Haryana High Court in Tara Singh Gopi Chand v. The State
(1951)17, and the Allahabad High Court in Ram Nandan v. State of Uttar Pradesh (1959)18 —
declared that Section 124A of the IPC was primarily a tool for colonial masters to quell discontent in
the country and declared the provision unconstitutional. “Australia repealed its sedition law in 2010,
and last year, Singapore also repealed the law citing that several new legislations can sufficiently
address the actual need for sedition law without its chilling effects.”19

13
[2020] EWHC 924 (Admin)
14
UN General Assembly, Model Treaty on Extradition : resolution / adopted by the General Assembly, 14 December 1990,
A/RES/45/116, available at: https://www.refworld.org/docid/3b00f18618.html [accessed 20 October 2022]
15
United Nations, Treaty Series, vol. 999, p. 171
16
1950 AIR 124
17
1951 CriLJ 449
18
AIR 1959 All 101
19
https://indianexpress.com/article/explained/sedition-law-explained-origin-history-legal-challenge-supreme-court-7911041/
 VI- The UN Human Rights Committee (HRC) General Comment No. 32, Section 2, States that
“Freedom of opinion and freedom of expression are indispensable conditions for the full development
of the person. They are essential for any society and... constitute the foundation stone for every free
and democratic society”, Section 3 states that, “Freedom of expression is a necessary condition for
the realization of the principles of transparency and accountability that are, in turn, essential for the
promotion and protection of human rights”20 and General comment No. 27, Section 13 states that
“The laws authorizing the application of restrictions should use precise criteria and may not confer
unfettered discretion on those charged with their execution.”21 Further in the case of Ten Human
Rights Organisations v The United Kingdom22 before the European Court of Human Rights, the
hon’ble court held that, “As to the permissible limitations on expression, restrictions on freedom of
expression may not put in jeopardy the right itself... the relation between right and restriction and
between norm and exception must not be reversed.”23 HRC also warns that restrictions imposed on
free expression to protect the rights of others ‘must be constructed with care’. “Extreme care must be
taken ... to ensure that treason laws and similar provisions relating to national security, whether
described as official secrets or sedition laws or otherwise”24
VII- It is humbly submitted before this Hon’ble Court that as per the The Siracusa Principles adopted in
1985 by the UN’s Economic and Social Council provide, inter alia, that:“29. National security may
be invoked to justify measures limiting certain rights only when they are taken to protect the existence
of the nation or its territorial integrity or political independence against force or threat of force.30.
National security cannot be invoked as a reason for imposing limitations to prevent merely local or
relatively isolated threats to law and order.31. National security cannot be used as a pretext for
imposing vague or arbitrary limitations and may only be invoked when there exists adequate

safeguards and effective remedies against abuse.”25And these principles were circulated by the 41st
session of the UN Commission on Human Rights. In 1995 they were endorsed in the Johannesburg
Principles on National Security, Freedom of Expression and Access to Information. Principles 6-
8 of the Johannesburg Principles (‘Expression That May Threaten National Security’) provide, inter
alia, that ‘expression may be punished as a threat to national security’ only where it can be
demonstrated that the expression intended and was likely to incite imminent violence; that ‘the
peaceful exercise of the right to freedom of expression shall not be considered a threat to national
security or subjected to any restrictions or penalties’

20
CCPR/C/GC/32 (2007)
21
UN Human Rights Committee (HRC), CCPR General Comment No. 27: Article 12 (Freedom of Movement), 2 November
1999, CCPR/C/21/Rev.1/Add.9, available at: https://www.refworld.org/docid/45139c394.html [accessed 20 October 2022]
22
24960/15
23
Id.
24
62322/14
25
UN Commission on Human Rights, The Siracusa Principles on the Limitation and Derogation Provisions in the International
Covenant on Civil and Political Rights, 28 September 1984, E/CN.4/1985/4, available at:
https://www.refworld.org/docid/4672bc122.html [accessed 20 October 2022]
 VIII- It is humbly submitted before this hon’ble Court that the petitioner has not even received a fair trial
and was denied consular access by the Government of Stan thereby violating Article 5 (i) of the
Vienna Convention on Consular Relations which states that, “Article 5(i) subject to the practices
and procedures obtaining in the receiving State, representing or arranging appropriate
representation for nationals of the sending State before the tribunals and other authorities of the
receiving State, for the purpose of obtaining, in accordance with the laws and regulations of the
receiving State, provisional measures for the preservation of the rights and interests of these nationals,
where, because of absence or any other reason, such nationals are unable at the proper time to assume
the defence of their rights and interests”26 and also violating Article 3 (f) of the Model Treaty stating
that, “Article 3 (f) If the person whose extradition is requested has been or would be subjected in the
requesting State to torture or cruel, inhuman or degrading treatment or punishment or if that person
has not received or would not receive the minimum guarantees in criminal proceedings, as contained
in the International Covenant on Civil and Political Rights, article 14”27 read with Article 14(3)(b)
International Covenant on Civil and Political Right ( ICCPR) which states that, “14(3)(b). In the
determination of any criminal charge against him, everyone shall be entitled to the following
minimum guarantees, in full equality: (b) (b) To have adequate time and facilities for the
preparation of his defence and to communicate with counsel of his own choosing;”28 It is brought
to the esteemed attention of this Hon’ble Court that the Petitioner was not allowed to meet
representatives from the Brittany embassy during her detention and also right to fair trial as
enumerated by the constitution of Republic of Stan under Article 2129 which is “a basic
fundamental/human right”30 The State is obliged to provide free legal aid to a prisoner who is indigent
or otherwise disable from securing legal assistance where the ends of justice call for such service.
Articles 21 and 39A31 to underline the importance of providing legal aid to accused who have no
means to engage a pleader, especially for under trial prisoners.32

26
UN Doc E/CN.4/1987/17
27
UN General Assembly, Model Treaty on Extradition : resolution / adopted by the General Assembly, 14 December 1990,
A/RES/45/116, available at: https://www.refworld.org/docid/3b00f18618.html [accessed 20 October 2022]
28
United Nations, Treaty Series, vol. 999, p. 171
29
The Constitution of Stan, art.
30
The Constitution of Stan, art.
31
Dwarka Prasad Agarwal (D) By LRs. v. B.D. Agarwal and Others [(2003) 6 SCC 230]
32
Suk Das vs. Union Territory of Arunachala Pradesh, 2 (1986) SCC 401
 PRAYER

Wherefore, in light of the facts stated, issues raised, arguments advanced and authoritiescited, may this
Hon’ble Court be pleased to hold, adjudge and declare that:
1- As per customs and statues pertaining to extradition, Petitioner’s extradition was not legal
AND

Pass any other order that the Hon’ble Court may deem fit, in the interest of Justice, Equityand Good
Conscience.

All of which is most humbly and respectfully submitted.

Place: Sd/-

Date: (Counsels for the Petitioner)