Reply Filed On Behalf of Respondents To The Criminal Writ Petition Filed Under Article 32 of The Constitution of Himal

TC––49R49P
MAIMS 3RD NATIONAL MOOT COURT COMPETITION 2022
BEFORE THE HONORABLE SUPREME COURT OF HIMAL
Reply filed on behalf of Respondents to the Criminal Writ Petition filed under
Article 32 of the Constitution of Himal
WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS
Writ Petition (Crl.) No. ____of 2022
Mr. Bloom……………………...….……….……………………Petitioner No. 1

Union of Himal & Mr. Waterman……………………………. Petitioner No. 2
v.
Union of Himal……………………………………………. Respondent No. 1

Mr. Sarvesh…………………………………………………Respondent No. 2
MEMORANDUM ON BEHALF OF THE RESPONDENTS DRAWN AND FILED BY THE

COUNSELS FOR THE RESPONDENTS
TABLE OF CONTENTS
TABLE OF CONTENTS.................................................................................................................I
LIST OF ABBREVIATIONS.......................................................................................................III
INDEX OF AUTHORITIES..........................................................................................................V
STATEMENT OF JURISDICTION..............................................................................................X
STATEMENT OF FACTS............................................................................................................XI
ISSUES RAISED.........................................................................................................................XII
SUMMARY OF AURGUEMENTS.......................................................................................... XIII
ARGUMENTS ADVANCED.........................................................................................................1
Contention 1- That the doctrine of reverse burden of proof under the Sexual Offences
against Children Act is constitutionally valid......................................................................... 1
1.1 Presumption of Constitutionality.......................................................................................1
1.2 That there has been no violation of the fundamental rights of the accused as enumerated
under Articles 14 and 19 of the Constitution...........................................................................2
1.3 That there is no violation of the fundamental rights of the accused as guaranteed under
20(3) and 21 of the Constitution.............................................................................................. 4
1.4 Provisions regarding culpable state of the mind of the accused and reverse burden of proof
in other legislations..................................................................................................................5
Contention 2 – That the accused does not have a right to privacy and more specifically
right to be forgotten with respect to the Criminal procedure (identification)Act, 2022.....7
2.1 That there is no infringement of fundamental rights......................................................... 7
2.2 That right to privacy is not absolute.................................................................................. 8
2.3 That right to be forgotten is neither a constitutional right and nor a statutory right and
hence considering the infringement of the same here is not a requirement........................... 10
[I]
MEMORIAL ON BEHALF OF THE RESPONDENTS
2.4 That the Criminal identification (Procedure) Act fulfills the test of restrictions as laid down
in K.S. Puttaswamy v. Union of India....................................................................................11
Contention 3 - That Mr. Sarvesh should not be held guilty of violation of the
Representation of People Act 1951......................................................................................... 12
3.1 That the financial assistance to the victim does not amount to the corrupt practice of
bribery.................................................................................................................................... 12
3.2 That the financial support by the respondent was for the welfare of the victim..............15
3.3 That there is no violation of the constitutional scheme and the respondent’s right to
freedom of speech and expression is violated........................................................................17
Contention – 4 That the victim has a right to privacy and is entitled to compensation for
the breach of the same............................................................................................................. 19
4.1 That the identity of the victim is already disclosed by the public record.........................19
4.2 That the Media is liable for the disclosure of the identity of the victim.......................... 20
4.3 That the respondent’s act was bona fide and was for the public good and welfare.........21
PRAYER......................................................................................................................................XII
[II]
LIST OF ABBREVIATIONS
ABBREVIATION EXTENS ION
& And
§ Section
¶ Paragraph
v. Versus
Ed. Edition
Anr. Another
Ors. Others
Art. Article
Const. Constitution
Cri. Criminal
Etc. Etcetera
Hon’ble Honorable
i.e. That is
Ltd. Limited
U.P. Uttar Pradesh
UT Union Territory
J&K Jammu and Kashmir
T.N. Tamil Nadu
[III]
MP Madhya Pradesh
SOC Sexual Offence against Children
POCSO Protection of Children from Sexual Offences
NDPS Narcotic Drug and Psychotropic Substances
CrPC Code of Criminal Procedure
IPC Indian Penal Code, 1860
UOI Union of India
Vol. Volume
Co. Company
Ltd. Limited
SCC Supreme Court Cases
SCR Supreme Court Reports
HP Himachal Pradesh
Gua Guhati
Govt. Government
MLA Member of Legislative Assembly
[IV]
INDEX OF AUTHORITIES
STATUTES REFERRED
• CODE OF CRIM INAL PROCEDURE,1973.

• INDIAN EVIDENCE ACT,1872.
• INDIAN PENAL CODE,1860.
• THE CONSTITUTION OF HIM AL,1950.
• THE CRIM INAL PROCEDURE (IDENTIFICATION) ACT,2022.
• THE INFORM ATION TECHNOLOGY ACT,2000.
• THE PROTECTION OF CHILDREN FROM SEXUAL OFFENCES ACT,2012.
• THE REPRESENTATION OF THE PEOPLE ACCT,1951.
BOOKS REFERRED
• A.S. Ramachandra Rao, Commentary on Prevention of Corruption (Law Publishers

rd
(India) Pvt. Ltd., Allahabad, 3 ed.).
• Anand Bhallabh Kafaltiya, Democracy and Election Laws 175-193 (Deep and Deep
Publication Pvt. Ltd., New Delhi, 2003 ed.).
• Chief Justice M Monir, Textbook on The Law of Evidence (Universal Law Publishing,
th
Haryana, 11 ed.).
• Dr. Gokulesh Sharma and Hemant Kumar Pandey, A Manual on Indian Evidence Act
(Thomson Reuters, New Delhi, First ed.).
th
• J.N. Pandey, Constitutional Law (Central Law Agency, 58 ed.).
• Justice P.S. Narayana, Commentary on the SOCAct,2012 and rules 49-55 (Universal Law
Publishing Co. Pvt. Ltd., New Delhi, 2013 ed.).
• Justice S.D. Agarwala and Dr. H.P. Gupta, A Guide to Anti Corruption Laws 699-711
(Modern Law House, Allahabad, First ed.).
[V]
• K.N. Chandrasekharan Pillai, General Principles of Criminal Law (Eastern Book

Company, Delhi, First ed.).
• M.P. Jain, Constitutional Law (LexisNexis, Eighth ed.).
th
• Narender Kumar, Constitutional Law (Allahabad Law Agency, Haryana, 10 ed.).
• Naunihal Singh, The World of Bribery and Corruption (Mittal Publication, New Delhi,
First ed.).
• R.N. Choudhary, Election Laws and Practice in India 345-388 (Orient Publishing
Company, New Delhi, Second ed.).
th
• Ratanlal & Dhirajlal, The Indian Penal Code (LexisNexis, Haryana, 35 ed.).
• Videh Upadhyay, Public Interest Litigation in India (LexisNexis, New Delhi,).
th
• V.N Shukla, Constitution of India 145 (Mahendra P. Singh rev., 12 ed. 2016).
ARTICLES, WEBSITES AND ONLINE DATABASES
• Bribe definition investopedia, https://www.investopedia.com/terms/b/bribe.asp (last

visited oct 22, 2022).
• Compensation to the victim of crime: assessing legislative frame work and role of Indian
courts legalserviceindia.com, https://www.legalserviceindia.com/articles/pun. htm (last visited
oct 22, 2022).
• “freedom of speech and expression” as a fundamental right in India and the test of
constitutional... researchgate, https://www.researchgate.net/publication/306899769_’free
dom_of_speech_and_expression’_as_a_fundamental_right_ in_ india_and_the_test_of_co
nstitutional_regulations_the_constitutional_perspective (last visited oct 23, 2022)
• Garima Rathi, victim of sexual assault and importance of media, journal of legal studies
and research, volume 2 issue 2, April 2016.
• www.scconline .com
• www.manupatrafast.com
[VI]
TABLE OF CASES
S. NO. NAME OF THE CASE CITATION PAGE

1. Ankush Shivaji Gaikwad v. State of Maharashtra (2013) 6 SCC 770 21
2. Asif Hameed v. State of J&K 1989 Supp (2) SCC 364 4
3. Baldev Singh Mann v. Surjit Singh Dhiman (2009) 1 SCC 633 20
4. Bhim Singh v. Union of India (2010) 5 SCC 538 20
5. Bihar Public Service Commission v. Saiyed (2012) 13 SCC 61 11
Hussain Abbas Rizwi
6. Bombay Dyeing & Mfg. Co. Ltd. v. Bombay (2006) 3 SCC 434 1
Environmental Action Group
7. Borgaram Deuri v. Premodhan Bora 2002 SCC OnLine Gau 48 13
8. Chaitanya Kumar v. Sushila (1976) 3 SCC 97 13
9. Chintamani Rao v. Satte of Madhya Pradesh 1950 SCC OnLine SC 34 18
10. Deepak Theatre v. State of Punjab 1992 Supp (1) SCC 684 4
11. Dharamraj Bhanushankar Dave v. State of Gujarat 2017 SCC OnLine Guj 2493 10
12. E.P. Royappa v. State of T.N. (1974) 4 SCC 3 7
13. Ekta Shakti Foundation v. Govt. (NCT of Delhi) (2006) 10 SCC 337 13
14. Gangadhar Narayan Nayak v. State of Karnataka 2022 SCC OnLine SC 337 22
15. Ghasi Ram v. Dal Singh & Ors. 1968 SCR (3) 102 15
16. Gobind v. State of MP (1975) 2 SCC 148 7
17.. Gopalrao Ravaliji Gulve v. Shantaram Punjaji (1999) 8 SCC 574 14
Ahor
18. Hamdard Dawakhana v. Union of India (1960) 2 SCR 671 2
19. Hem Raj v. Ramjilal (1975) 4 SCC 671 14
20. Hiten P. Dalal v. Bratindranath Banerjee 2001 Cri LJ 4607 4
21. Jeet Mohinder Singh v. Harminder Singh Jassi (1999) 9 SCC 386 17
22. Justin v. Union of India 2020 SCC OnLine Ker 4956 3
23. K.S. Puttaswamy (Privacy-9j) v. Union of India (2017) 10 SCC 1 7,8
[VII]
24. Kartar Singh v. State of Punjab (1962) 2 SCR 395 10

25. Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225 15
26. M.J. Jacob v. A. Narayanan (2009) 14 SCC 318 19
27. M.S. Narayan Menon v. State of Kerala 2006 Cri LJ 4607 4
28. Mahant Sheo Nath v. Choudhary Ranbir Singh (1970) 3 SCC 647 14
29. Manmohan Kalia v. Shri Yash (1984) 3 SCC 499 14
30. Nipun Saxena v. UOI (2020) 18 SCC 499 20
31. Noor Aga v. State of Punjab 2008 (56) BLJR 2254 4
32. Om Narain Agarwal v. Nagar Palika, (1993) 2 SCC 242 2
Shahjahanpur
33.. P.N. Krishna Lal v. Government of Kerala 1995 Supp (2) SCC 187 6
34. Patangrao Kadam v. Prithviraj Sayajirao Yadav (2001) 3 SCC 594 19
Deshmukh
35. Prashant Mehta v. State of H.P. 2021 SCC OnLine HP 5438 11
36. R. Rajagopal v. State of T.N. (1994) 6 SCC 632 19
37. Ram Krishna Dalmia v. Justice S.R. Tendolkar 1959 SCR 279 1
38.. Ram Singh v. Col. Ram Singh 1985 Supp SCC 611 13
39. Ramchandra G. Kapse v. Haribansh Ramakbal (1996) 1 SCC 206 18
Singh
40. Rangataju v. Kannayal and Ors 2012 SCC OnLine Mad. 138 19
41. Razik Ram v. J.S. Chauhan (1975) 4 SCC 769 14
42. Renjit D. Udeshi v. State of Maharashtra (1965) 1 SCR 65 12
43. Richardson Gardner v. Eykyn (1869) 19 LT 613 19
44. Ritesh Sinha v. State of U.P. (2019) 8SCC1 8
45. S. Subramaniam Balaji v. State of T.N. (2013) 9 SCC 659 16
46. Samant N. Balakrishna v. George Fernandez (1975) 4 SCC 769 13
47. Samatha v. State of A.P. (1997) 8 SCC 191 17
48. Satya Pal Anand v. State of MP (2014) 4 SCC 800 13
49 Seema Silk & Sarees v. Directorate of Enforcement (2008) 226 ELT (SC) 673 3
[VIII]
50. Sivam Pillai v. B.C. Jose 1984 SCC OnLine Ker 267 12
51. State of Madras v. Zenith Lamps (1973) 1 SCC 162 1
52. State of Orissa v. Gopinath Dash (2005) 13 SCC 495 5
53. Surinder Singh v. Hardial Singh 1985 SCR (1) 1059 15
54. Union of India v. Elphinstone Spinning & Weaving (2001) 4 SCC 139 2
Co.
[IX]
STATEMENT OF JURISDICTION
The Respondents i.e. Union of Himal and Mr. Sarvesh humbly submits before the
Honorable Supreme Court of Himal under Article 32 of the Constitution of Himal.
ARTICLE 32: REMEDIES FOR ENFORCEMENT OF RIGHTS CONFERRED BY THIS PART (PART III)
1. The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed.
2. The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
3. Without prejudice to the powers conferred on the Supreme Court by clause (1) and (2),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercised by the Supreme Court under clause (2).
4. The right guaranteed by this article shall not be suspended except as otherwise provided
for by the Constitution.
[X]
STATEMENT OF FACTS
1. On 12.06.2022, in Pelikan, district in the state of Arya in the country of Himal, the victim
th
was studying with her friend, Master Lamy who is in the same 10 standard as her when
the light went out.
2. It is alleged that in the meanwhile Mr. Bloom, the elder brother of Master Lamy had
touched Victim X inappropriately and tried furthermore sexual advances.
3. Victim X did not inform her Parents about the alleged night. On 14.08.2022 Mr. Bloom
confronted Victim X that he had a video clip of her being semi-naked, to her shock and horror,
she duly complied with non-consensual and unwarranted sexual advances on being threatened
with the clip being leaked.
4. On 18.09.2022 morning, Victim X informed her parents about the said incident and
consequently they reported the alleged incident to the nearest police station S.H.O.
5. Mr. Bloom on knowing about the complaint filed against him released the compromising
video clip, whose IP address was of Corpo, a neighboring county of Himal. The accused has filed
petition in Supreme Court challenging section 29 & 30 of the SOC Act and to enforce his right to
privacy and also for the right to be forgotten regarding his measurements taken under The
Criminal Procedure (Identification) Act.
6. Meanwhile, a sitting MLA Mr. Sarvesh visited the victim and provided financial support
of Rs 5 Lakhs and announced the same to the media. While on the footsteps of their house, he
points to the party symbol and reminded them of the upcoming elections.
7. He also announced his re-election campaign and promised that he will give money to all
those victims who come out with their stories.
8. The video clip went viral and the opposing MLA candidate Mr. Waterman from the same
district lodged a complaint to EC for violation of the Representation of People’s Act and alleged
that the financial support to be a bribe and freebie. The same was also filed before the Supreme
Court of Himal as a form of PIL.
9. The petitioner Victim X moved before the Court for victim compensation as well on both
accounts of the offences as well as the breach of privacy.
10. The Supreme Court clubbed these petitions under art. 139 of the Constitution.
[XI]
ISSUES RAISED
Issue 1
WHETHER THE DOCTRINE OF REVERSE BURDEN IS CONSTITUTIONALLY VALID UNDER “SOC ACT”?
Issue 2
WHETHER THE ACCUSED MR. BLOOM HAVE A RIGHT TO PRIVACY AND M ORE SPECIFICALLY
RIGHT TO BE FORGOTTEN WITH RESPECT TO THE CRIM INAL IDENTIFICATION ACT,2022?
Issue 3
WHETHER MR. SARVESH SHOULD BE HELD GUILTY OF A VIOLATION OF THE

REPRESENTATION OF PEOPLE ACT, 1951 FOR SUPPORTING THE VICTIM?
Issue 4
WHETHER THE VICTIM HAS A RIGHT TO PRIVACY? WHETHER THE VICTIM IS ENTITLED TO COM
PENSATION CONSIDERING BREACH IF ADM ITTED ?
[XII]
SUMMARYOF AURGUEMENTS
CONTENTION – 1 THAT THE DOCTRINE OF REVERS E BURDEN UNDER THE SOC ACT IS CONS
TITUTIONALLY VALID: - It is humbly submitted before the Honorable court that the doctrine of
reverse burden of proof as mentioned under sections 29 and 30 of the Sexual Offences against
Children Act is constitutionally valid as the parliament is empowered under Article 15(3) of the
constitution to make special laws for women and children and this act comes under the ambit of
the same. There has been no violation of any of the fundamental rights of the accused as alleged
by him. The doctrine of reverse burden of proof fulfills the constitutional mandates and is valid.
CONTENTION – 2 THAT THE ACCUS ED DOES NOT HAVE A RIGHT TO PRIVACY AND MORE
S PECIFICALLY RIGHT TO BE FORGOTTEN WITH RES PECT TO THE CRIMINAL IDENTIFICATION

ACT 2022: - It is humbly submitted before the hon’ble court that this act does not violate the right
to privacy of the accused as it is in complete consonance with the Constitution and does not
violate the fundamental rights of the accused. The right to privacy recognized under Article 21 is
not absolute and is subject to reasonable restrictions.
CONTENTION – 3 THAT MR. SARVES H IS NOT GUILTY OF VIOLATION OF THE
REPRES ENTATION OF PEOPLE ACT 1951: - It is humbly submitted before this honorable court that
the respondent is not guilty of violating the representation of the people act 1951 as the financial
support which was provided by the respondent was with a bona fide intent of providing financial
assistance to the victim and with a welfare purpose and the impugned action of the respondent does
not amount to any corrupt practice as under section 123 of the Representation of People Act.
CONTENTION – 4 THAT THERE IS NO BREACH OF THE VICTIM ’S RIGHT TO PRIVACY AND NO

COMPENS ATION THEREOF: - It is humbly submitted that there is no infringement of the right to
privacy of the victim in the present case and further right to privacy is subject to the exception,
that any publication concerning the aforesaid aspects becomes unobjectionable if such
publication is based upon public records including court records. This is for the reason that once
a matter becomes a matter of public record, the right to privacy no longer subsists and it becomes
a legitimate subject for comment by press and media among others.
[XIII]
ARGUEMENTS ADVANCED
CONTENTION 1- THAT THE DOCTRINE OF REVERS E BURDEN OF PROOF UNDER

THE SEXUAL OFFENCES AGAINS T CHILDREN ACT IS CONS TITUTIONALLY VALID
1. It is humbly submitted before the Honorable court that the doctrine of reverse burden of proof as
mentioned under sections 29 and 30 of the Sexual Offences against Children Act is constitutionally
valid as the parliament is empowered under Article 15(3) of the constitution to make special laws for
women and children and this act comes under the ambit of the same. There has been no violation of
any of the fundamental rights of the accused as alleged by him. The doctrine of reverse burden of
proof fulfills the constitutional mandates and is valid.
1.1 Presumption of Constitutionality

2. It is humbly submitted before the Hon’ble bench that there is a presumption of constitutionality in the
favor of already existing laws. 1 As ruled in State of Madras v. Zenith Lamps,2 the presumption of
constitutionality of laws requires that it has to be resolved in favor of constitutionality unless so irrational
as to incur any constitutional infirmity. In order to sustain the presumption of constitutionality, the Court
may take into consideration matters of common knowledge, matters of common report and may assume
every state of facts which can be conceived existing at the time
of legislation.3
3. A provision of law is construed so as to make it effective and operative on the principle expressed in
the maxim ‘ut res magis valeat quam pereat’ which is an important principle of interpretation of
statutes and literally means it may rather become operative than null. The effect of this maxim is that
an enacting provision or statute has to be so construed to make it effective and operative. It means
that it is better for a thing to have an effect than for it to become void. while interpreting any
provision, the courts should not lean towards the construction that renders any provision of the statute
void or futile. Hence, whenever the words used in a provision are imprecise, uncertain
1 Ram Krishna Dalmia v. Justice S.R. Tendolkar, 1959 SCR 279.

2 State of Madras v. Zenith Lamps , (1973) 1 SCC 162.
3 Bombay Dyeing & Mfg. Co. Ltd. v. Bombay Environmental Action Group, (2006) 3 SCC 434.
[1]
and ambiguous thereby leading to the possibility of alternative constructions, then the courts
should construe the provision in such a manner that none of the provisions of the statute is turned
inoperative.
4. Therefore, the burden of establishing that the provision has transgressed any constitutiona l
mandates is always on the person who challenges its vires.4 “Unless it becomes clear beyond
reasonable doubt that the legislation in question transgresses the limits laid down by the organic law
of the Constitution, it must be allowed to stand as the true expression of national will.” 5
1.2 That there has been no violation of the fundamental rights of the accused as enumerated
under Articles 14 and 19 of the Constitution
5. It is humbly contended that this statute is a unique one, and is intended to effectively tackle the
malice of child abuse. It is contended that, rigorous provisions are incorporated in the Statute having
regard to the gravity of offence, young age of the victim involved, increasing incidents of child
abuse, impact of abuse on the psychological and physical well - being of the victim child, the
mental trauma which the child and family undergoes and the likely absence of direct eye witnesses
to such incidents.
6. It is further contended that considering these facts, special provisions have been incorporated by
the Parliament in its wisdom after taking note of the sensitive nature of the crime and effective
safeguards are provided in the matter of investigation and trial, keeping in mind the well - being of
the victim child. It is specifically mentioned in the object that, it was passed on the mandate of
Art.15(3) of the Constitution, which empowers the State to make special laws for children.
7. Article 15(3) of the Constitution of Himal empowers the State to enact special laws for children.
Article 15 provides that, State shall not discriminate against any citizen on grounds only of religion,
race, caste, sex, place of birth or any of them. Article 15(3) provides an exception that nothing in the
article shall prevent the State from making any special provision for women and
6
children. In Om Narain Agarwal case wherein it was held that, Clause (3) of Art.15 itself was an
exception to article 14 and clauses (1) and (2) of article 15 of the Constitution.
8. It is further contended that Article 39 incorporates certain directive principles of state policy which
are also relevant in this regard. Article 39(e) provides that, State shall direct its policy towards
4 Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671.

5 Union of India v. Elphinstone Spinning & Weaving Co., (2001) 4 SCC 139.
6 Om Narain Agarwal v. Nagar Palika, Shahjahanpur, (1993) 2 SCC 242.
[2]
securing the health and strength of workers, men and women, and the tender age of children are
not abused and that citizens are not forced by economic necessity to enter avocations unsuited to
their age or strength. Article 39(f) provides that, children are given opportunities and facilities to
develop in a healthy manner and in conditions of freedom and dignity and that childhood and
youth are protected against exploitation and against moral and material abandonment. Part IV of
Constitution which declares the Directive Principles of State Policy mandates that the directive
principles are fundamental in the governance of the country and it shall be the duty of the State
to apply those principles in making laws.
9. The SOC Act, as discernible from its statement of objects and reasons is a legislation introduced
to give effect to the Directive Principles of State Policy and also to discharge the mandate of the
Constitution of Himal and the international convention.
10. It has been rightly observed by the Kerala High Court in the case of Justin Renjith v. Union of
7
India that “Evaluation of the judicial pronouncements lead to the conclusion that, statutory
provisions which exclude mens rea, or those offences which impose strict liability are not
uncommon and that by itself does not make such statutory provisions unconstitutional. Further,
Statutes imposing limited burden on the accused to establish certain facts which are specifically
within his knowledge, is neither rare in Indian Criminal Law and nor do they, by itself make
such statutory provisions unconstitutional.
11. However, the statutory burden on accused should only be partial and should not thereby shift the
primary duty of prosecution to establish the foundational facts constituting the case, to the accused. Such
a provision should also be justifiable on the ground of predominant public interest. Hence, sections 29
and 30 of the SOC Act, do not offend Articles 14 and 19 of the Constitution of Himal. They do not in any
way violate the Constitutional guarantee, and hence not ultravires to the
Constitution.”
8
12. Supreme Court noticed that in Seema Silk & Sarees v. Directorate of Enforcement, the
Constitutionality of Sections 18(2) and 18(3) of the Foreign Exchange Regulation Act, 1973 were
questioned on the ground of infringing the ‘equality clause’ enshrined in Article 14 of the
Constitution. The Court held that, a legal provision does not become unconstitutional only because
7 Justin v. Union of India, 2020 SCC OnLine Ker 4956.

8 Seema Silk & Sarees v. Directorate of Enforcement, (2008) 226 ELT (SC) 673.
[3]
9
it provides for a reverse burden. Referring to Hiten P. Dalal v. Bratindranath Banerjee and M.S.
10
Narayan Menon v. State of Kerala , it was held that the question as regards burden of proof is
procedural in nature.
1.3 That there is no violation of the fundamental rights of the accused as guaranteed under
20(3) and 21 of the Constitution
11
13. In Noor Aga v. State of Punjab it was held that, presumption of innocence is a human right and
cannot per se be equated with the Fundamental Right under Art.21 of the Constitution of Himal. It
was held that, subject to the establishment of foundational facts and burden of proof to a certain
extent can be placed on the accused. However, Supreme Court in various decisions referred above
has held that, provisions imposing reverse burden must not only be required to be strictly complied
with but also may be subject to proof of some basic facts as envisaged under the Statute.
14. Hence, prosecution has to establish a prima facie case beyond reasonable doubt. Only when the
foundational facts are established by the prosecution, the accused will be under an obligation to rebut
the presumption that arise, that too, by adducing evidence with standard of proof of preponderance of
probability. The insistence on establishment of foundational facts by prosecution acts as a safety
guard against misapplication of statutory presumptions.
15. Hence, the accused is not subjected to self-incrimination by just the fact that he has to establish
his innocence with standard proof of preponderance of probability under the reverse onus clauses
neither is his right to free and fair trial is being violated as the trial is still through a procedure
established by law under the SOC Act and other relative statutes.
1.3.1 That there can be exclusion of mens rea in Statutory Offences
16. Mens rea by necessary implication may be excluded from a statute only where it is absolutely
clear that the implementation of the object of the statute would otherwise be defeated. Whenever
mental element was statutorily excluded, such exclusion need not necessarily be explicit, but can be
by necessary implication also.
9 Hiten P. Dalal v. Bratindranath Banerjee, 2001 Cri LJ 4647.

10 M.S. Narayan Menon v. State of Kerala, 2006 Cri LJ 4607.
11 Noor Aga v. State of Punjab, 2008 (56) BLJR 2254.
[4]
17. In the case of all other offences under the SOC Act, sexual intent is not statutorily an important
ingredient. Such offences involve varying degree of physical interference on the victim or
penetrative act, which if done, by itself explicitly exhibits a sexual intent and hence, mens rea is
implied in the conduct of the aggressor itself. Hence it need not even be specifically established by
the prosecution. Hence Parliament has consciously omitted the ingredient of sexual intent from the
above offences, since that mental element is implied in the very nature of the crime
1.4 Provisions regarding culpable state of the mind of the accused and reverse burden of proof
in other legislations
18. It is humbly submitted before the Hon’ble court that there have been certain legislations where
presumption of culpable state of the mind of the accused is there and the same has been upheld in
various high court and Supreme court judgements.
19. Presumption regarding culpable mental state is available under section 35 in a prosecution under
12
the NDPS Act . Section 54 of the above Act, provides that, if the accused is found in possession
of a contraband, possession of which he fails to account satisfactorily, a presumption that the
accused has committed an offence under the Act can be drawn, unless and until the contrary is
proved. Certain presumptions are available under section 21 of the Terrorist and Disruptive
Activities (Prevention) Act (TADA), Section 20 of the Prevention of Corruption Act, 1988 and
under section 57 of the Wild Life (Protection) Act 1972.
20. It is further contended that under the Negotiable Instruments Act, 1881, presumptions regarding
negotiable instruments are available under section 118 of the Act as well as under section 139 of the
Act. Evidently, there are several statutes which envisages certain presumptions available to the
prosecution, similar to sections 29 and 30 of the SOC Act.
21. It was noted by the Division Bench of the Andhra Pradesh High Court that, although guilty mind was
the necessary ingredient of every offence, it can be displaced either by the words of the statute creating
the offence or by the subject matter with which the offence deals and both these aspects must be
considered by the court. According to the Division Bench, same was the position in India
also. Applying the above principle, it was held that, section 138 of the Negotiable Instruments Act
excludes mens rea by creating liability. Ultimately it was concluded that the absence of mens rea
12 The Narcotic Drug and Psychotropic Substances Act, 1985, § 35, No. 61, Acts of Parliament, 1985 (India).
[5]
in Section 138 of the Negotiable Instruments Act for fastening criminal liability was not
arbitrary and not violative of Art.14 of the Constitution of Himal.
13
22. The same view was followed in P N Krishna Lal v. Govt. of Kerala . In this case, the accused
faced prosecution under the Kerala Abkari Act, with the aid of presumptions under sections 57A and
57B of the Abkari Act. Under Section 57A(4)(b), it was provided that, where a person was
prosecuted for an offence under sub-section (3) for being in possession of any liquor or intoxicating
drug in which any substance referred to in subsection (1) was mixed, the burden of proving that, he
did not know that such substance was mixed with such liquor or intoxicating drug, shall be on the
accused.
23. It was held that the question of intention bears no relevance to an offence under section 57A of
the Abkari Act and equally of culpability or negligence. According to the Honorable Judges, mixing
or permitting to mix noxious substance or any other substance with liquor or intoxicated drug or
omission to take reasonable precaution or being in possession without knowledge of its adulteration
for the purpose of unjust enrichment would be without any regard for loss of precious human lives or
grievous hurt. The legislature has noted the inadequacy and deficiency in the existing law to meet the
menace of adulteration of liquor etc. and provided for new offences, and the question of intention
was not relevant for the above consideration.
24. Similarly, section 114A of the Evidence Act raises presumption of absence of consent in a rape
case. Several statutes also provide burden of proof on the accused. Referring to the other decisions, it
was indicated that, providing exceptions or to place partial burden on the accused was not violative
of Universal Declaration of Human Rights or even International convention on civil and political
rights.
25. Hence, it is very well contended by the counsel on behalf of the respondent that there is no
violation of the constitutional or the fundamental rights of the accused as the reverse onus clause is
impediment for the object of the SOC Act to be maintained and fulfilled.
13 P N Krishna Lal v. Government of Kerala, 1995 Supp (2) SCC 187.
[6]
CONTENTION 2 – THAT THE ACCUS ED DOES NOT HAVE A RIGHT TO PRIVACY

AND MORE S PECIFICALLY RIGHT TO BE FORGOTTEN WITH RES PECT TO THE
CRIMINAL PROCEDURE (IDENTIFICATION)ACT, 2022
27. It is humbly submitted before the hon’ble court that this act does not violate the right to privacy
of the accused as it is in complete consonance with the Constitution and does not violate the
fundamental rights of the accused.
2.1 That there is no infringement of fundamental rights

28. It is humbly submitted before the Hon’ble bench that in the case of Maneka Gandhi v. Union of
India, it was held that procedure established by law under Article 21 cannot be arbitrary, unfair or
unreasonable. The reasonableness of law prescribing procedure can be tested in view of article 14
and 19 of the Constitution of Himal. For limiting the right to privacy include an Article 14 type
reasonableness in enquiry. The classification is unreasonable if there is no intelligible differentia
justifying the classification and if the classification has no rational nexus with the objective sought to
be achieved.
29. Arbitrariness, which was first explained in E.P. Royappa v. State of T.N.,14, is very simply the
lack of any reasoning. Limitation as per the express provisions of Article 19; a just, fair and
reasonable basis (that is, substantive due process) for limitation as per Article 21; and finally, a just,
fair and reasonable standard per Article 21 plus the amorphous standard of “compelling State
interest”15. The last of these four options is the highest standard of scrutiny. In the present case, the
measures taken by the state is within the sphere of reasonableness as they aim at larger state interest
by increasing the ambit of the type of measurements that can be taken. This will not only assist in
speedy investigation but also speedy delivery of justice.
30. In Gobind v. State of M.P. 16 court resorted to the compelling State interest standard in addition to
the Article 21 reasonableness enquiry. From the United States, where the terminology of
“compelling State interest” originated, a strict standard of scrutiny comprises two things —a
“compelling State interest” and a requirement of “narrow tailoring” (narrow tailoring means that
the law must be narrowly framed to achieve the objective). As a term, “compelling State interest”
14 E.P. Royappa v. State of T.N., (1974) 4 SCC 3.

15 K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.
16 Gobind v. State of M.P., (1975) 2 SCC 148.
[7]
does not have definite contours in the US. Hence, it is critical that this standard be adopted with
some clarity as to when and in what types of privacy claims it is to be used. Only in privacy
claims which deserve the strictest scrutiny is the standard of compelling State interest to be used.
As for others, the just, fair and reasonable standard under Article 21 will apply. When the
compelling State interest standard is to be employed, must depend upon the context of concrete
cases. However, this discussion sets the ground rules within which a limitation for the right to
privacy is to be found.
2.2 That right to privacy is not absolute

31. It is humbly submitted before Hon’ble bench that the right to privacy recognized under Article 21
is not absolute and is subject to reasonable restrictions 17. The Constitution of Himal provides
reasonable restrictions to the right to privacy in the “interest of the sovereignty and integrity of India,
the security of the State, friendly relations with foreign States, public order, decency or morality, or
in relation to contempt of court, defamation or incitement to an offense”.
32. In the present case, accused has challenged the provisions of Criminal identification Act on the
basis that it is violating his right to privacy under article 21 of the constitution by subjecting the
accused to self-incrimination as under article 20(3) of the Constitution but in the case of Ritesh Sinha
v. State of UP18, a three judge bench of the Supreme Court of India observed that the fundamental
right to privacy is not absolute and is limited by certain factors instead. The issue raised before the
bench was whether a person can be compelled to submit his/her voice samples for the purposes of
identification in an ongoing criminal investigation. the Supreme Court held that the fundamental
right to privacy “must bow down to compelling public interest”. The judgement’s significance lies in
the fact that a person may be ordered to give his/her voice sample by a judicial magistrate for the
purposes of a criminal investigation.
33. Similarly, under the Criminal Procedure (Identification) Act an accused can be asked to give his
measurements, since it is in larger public interest. His measurements would help in widening the
ambit of investigation involving such criminal cases where no eye witness is present. These are
reasonable restrictions as provided in the case of Puttaswamy v. Union of India.19
17 Supra note 15.

18 Ritesh Sinha v. State of U.P., (2019) 8 SCC 1.
19 K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1.
[8]
34. Privacy is not absolute and cannot prevent the State from making laws imposing reasonable
restrictions on citizens, the Supreme Court observed.
35. In reference to the aforementioned landmark case, another restriction to the right of privacy is the
three-pronged test provided by Justice D.Y. Chandrachud, which must be satisfied for judging the
acceptable limits for invasion of privacy and here in the present case it has been very well bein g
justified: It holds that a law which encroaches upon the right to privacy will have to "withstand the
touchstone of permissible restrictions on fundamental rights "
36. Firstly, Legality, which postulates the existence of law - A valid law established by due procedure
must exist that justifies an infringement on privacy. This requirement is being fulfilled as Criminal
Procedure (Identification) Act, 2022 is a valid law established by due procedure of law.
37. Secondly, Need, defined in terms of a legitimate state aim -A genuine need for the invasion of
privacy must be present. A legitimate state aim must be there that falls within the ambit of
reasonableness. This is crucial for the prevention of arbitrary State action. This test is being fulfilled
by the statute as the measurements which have been taken from the accused will be used in due
investigation and further enquiry into the case. This falls within the ambit of
“reasonableness”, as such data would aid in speedy investigations and delivery of justice to the
victim.
38. And thirdly, Proportionality which ensures a rational nexus between the objects and the means
adopted to achieve them- The method, nature, and quality of encroachment adopted by the
Legislature must be proportional to the objects, needs and purposes sought to be fulfilled by the
law. The fact that the palm impression of the accused in the present case has been taken to match
it with the palm print recreated digitally based on the statements of the victim and her parents
which is a rational nexus between the object that is to carry out the investigation and means that
is taking of such bodily measurements as prescribed under the statute.20
39. Depriving law enforcement agencies of the use of the latest technologies would be a grave
disservice to victims of crimes, and the nation at large.
20 The Criminal Procedure (Identification) Act,2022, No. 11, Acts of Parliament, 2022 (India).
[9]
2.3 That right to be forgotten is neither a constitutional right and nor a statutory right and
hence considering the infringement of the same here is not a requirement
40. It is humbly submitted before this honorable court that the 'Right to be forgotten' gives the right
to individuals to have their private information removed from the internet, websites or any other
public platforms under special circumstances which is totally contradictory to the right which is
being claimed by the accused in the present case.
41. Right to be forgotten is not a statutory right in India. Hence, the petitioner cannot claim it.
42. Since the accused is undertrial he cannot seek this with respect to his information that is stored
under the online database ‘Katy’ as he is still undertrial in which he is the prime accused in
Criminal Case 421/2022 before ASJ, SOC Court Pelikan. He faces prosecution for offences
21
punishable under sections 3, 4, 5, 12 and 14 of the Sexual Offences against Children Act, 2012.
43. Under the Criminal procedure (identification) act,202222, according to the proviso of Section
4,“where any person, who has not been previously convicted of an offence punishable under any law
with imprisonment for any term, has had his measurements taken according to the provisions of this
Act, is released without trial or discharged or acquitted by the court, after exhausting all legal
remedies, all records of measurements so taken shall, unless the court or Magistrate, for reasons to be
recorded in writing otherwise directs, be destroyed from records”. Although the accused is not
entitled to the right to be forgotten but he can have his data deleted form the database
‘Katy’ as prescribed in the above section.
44. In the case of Dharamraj Bhanushankar Dave v. State of Gujarat and Others 23, the reasoning of the
High Court of Gujarat didn’t duly recognize the ‘Right to be Forgotten.’ With respect to the facts of the
case, the petitioner was charged of various criminal offences such as Culpable Homicide not amounting
to murder. The main concern of the petitioner was that this information in the case was declared to be
non-reportable by the court yet it could be easily accessed on the different websites on the internet. The
petitioner contended that this was clearly violating his Right to be forgotten and was also affecting his
personal and professional life. However, the court declared in this case that the judgement published on
any website won’t come under the purview
21 The Protection of Children from Sexual Offences Act 2012, §3, §4, §5, §12, §14, No. 32, Acts of Parliament,
2012 (India).
22 The Criminal Procedure (Identification) Act,2022, No. 11, Acts of Parliament, 2022 (India).
23 Dharamraj Bhanushankar Dave v. State of Gujarat, 2017 SCC OnLine Guj 2493.
[10]
of ‘reportable’ and would be required to ensure the Right to Information of the citizens of the
country. The Judgement is relevant in all respects to be known by the general public and hence
the state has the lawful right to publish the same. In its judgment the court did not acknowledge
the so-called ‘Right to be forgotten’.
45. Also, it is further contended that granting the right to be forgotten to the accused would also
infringe the right to information of the citizens. Also, in the present case the accused cannot be
justified in asking for his right to be forgotten as he is still under trial.
2.4 That the Criminal identification (Procedure) Act fulfills the test of restrictions as laid down
in K.S. Puttaswamy v. Union of India
46. It is submitted that the Supreme Court had stated that the 'Right to be forgotten' was subject to
certain restrictions, and that it could not be used if the material in question was required for the -
Exercise of the Right to freedom of expression and information;
Fulfillment of legal responsibilities;
Execution of a duty in the public interest or public
health; Protection of information in the public interest;
For the purpose of scientific or historical study, or for statistical purposes;
or The establishment, executing, or defending of legal claims.
47. As can be inferred from the circumstances in the present case, the accused cannot clearly claim his
right to be forgotten as his palm impression has been taken to fulfill certain legal responsibilit ies
of the investigating officer, which is being executed in public interest which will consequently
help in the speedy delivery of justice to the victim with the aid of technology.
48. Therefore, in the present case the accused is not entitled to his right to be forgotten with respect to his
personal data as the same has been taken to aid in the investigation of the case in which he is
24
still undertrial. Also, it is contended that public interest is greater than individual privacy if the
25
same is for the greater public good and for the betterment of society. The present situation
clearly fulfills the requirements of the test laid down above and hence the retention of data is
valid and legal.
24 Prashant Mehta v. State of H.P., 2021 SCC OnLine HP 5438.

25 Bihar Public Services Commission v. Saiyed Hussain Abbas Rizwi, (2012) 13 SCC 61.
[11]
CONTENTION 3 - THAT MR. SARVES H S HOULD NOT BE HELD GUILTY OF

VIOLATION OF THE REPRES ENTATION OF PEOPLE ACT 1951
49. It is humbly submitted before this honorable court that the respondent is not guilty of violating
the representation of the people act 1951 as the financial support which was provided by the
respondent was with a bona fide intent of providing financial assistance to the victim and with a
welfare purpose and the impugned action of the respondent does not amount to any corrupt practice
as under section 123 of the Representation of People Act.
3.1 That the financial assistance to the victim does not amount to the corrupt practice of bribery
50. It is submitted by the counsel on behalf of the respondent that the act of the respondent of
providing financial assistance to the victim does not amount to the corrupt practice of bribery as
under section 123 of the representation of the people act as the object of the act was not to induce the
voters but the welfare of the victim. A bribe is an illegal act in which a gift (for example, money) is
26
given with the goal of influencing an outcome.
51. It is further submitted that the corrupt practice of bribery under section 123 of the representation
of people act 1951, consist of a promise of gratification which directly or indirectly induce the
27
elector to vote or refrain from voting , but here in the present case there is no such promise
which induce voters to vote or refrain from voting, the financial support provided by the
respondent is just to ameliorate the grievances of the victim.
52. If the payment or offer of payment or a price is to induce an electric to vote be direct or vicarious
no doubt it is a corrupt practice but if it is with any other oblique objective perhaps the objective may
28
be held in morality it may be evil but may not be necessarily corrupt in the eye of law.
53. It is contended that the object in the present case behind providing financial assistance was to help
the victim recover and to show a support that the respondent is with the victim in her fight. The initial
focus of criminologists was only on the aspect of punishment but the focus started shifting when they
encountered with the fact that the person who is victim of crime is getting nothing out
26 BRIBE DEFINITION INVESTOPEDIA, https://www.investopedia.com/terms/b/bribe.asp (last visited Oct 22, 2022).

27 The Representation of the People Act, 1951, § 123, No. 43, Acts of Parliament, 1951(India).
28 Sivan Pillai v. B.C. Jose, 1984 SCC OnLine Ker 267.
[12]
of the whole process of criminal justice system or is getting a so-called satisfaction by seeing the
29
offender punished.
54. It is a very well-known fact that monetary compensation can never compensate the suffrage that
the victim of a heinous offence of sexual assault might have gone through but this also does not
overshadow the possible support which could be helpful in mitigating the aftermaths of the offence
on both physical and mental well-being of the victim, and the respondent himself being in a
responsible position could not ignore the welfare of this section of the society.
55. It is further contended that the traumatic stress a rape victim undergoes every moment of her life
cannot be compensated by any amount, nor can the dignity and confidence of a rape victim can be
restored. However, certain measures like adequate compensation, insurance and social security
30
may help in rehabilitating rape victim to some extent. And here the respondent being a sitting
MLA was just rendering his duty and liabilities towards his constituency which have been
completely used against the respondent by the petitioner through baseless allegations.
56. It is further contended that here in the present the petitioner’s allegations are vague and not well
31
established beyond reasonable doubt. In the case of Borgaram Deuri v. Premodhar Bora , it was
held that the returned candidate had not committed corrupt practice as such charges must be proved
beyond all reasonable doubt. It was also held in the case of Chaitanya Kumar v. Sushila, that
evidence must clearly establish that gift was made directly or indirectly to voter to vote or refrain
32
from voting. Allegations of corrupt practice must be proved beyond all reasonable doubt like
33
criminal case.
57. It is further contended that although, the trial of an election is made in accordance with the Code of
Civil Procedure it has been laid down that a corrupt practice must be proved in the same way as a
criminal charge is proved. In other words, the election petitioner must exclude every hypothesis
34
except that of guilt on the part of the returned candidate or his election agent. And here there are no
established facts or evidence against the respondent but just the petitioner’s baseless allegations
29 COMPENSATION TO THE VICTIM OF CRIME: ASSESSING LEGISLATIVE FRAME WORK AND ROLE OF INDIAN
COURTS LEGALSERVICEINDIA.COM, https://www.legalserviceindia.com/articles/pun.htm (last visited Oct 22, 2022).
30 Satya Pal Anand v, State of MP, (2014)4 SCC 800.
31 Borgaram Deuri v. Premodhar Bora, 2002 SCC OnLine Gau 48.
32 Chaitanya Kumar v. Sushila, (1976) 3 SCC 97.
33 Ram Singh v. Col. Ram Singh, 1985 Supp SCC 611.
34 Samant N. Balakrishna v. George Fernandez, (1975) 4 SCC 769.
[13]
to defame the respondent ahead of the approaching elections. Allegations of corrupt practice
35
must be proved as strictly as a criminal charge.
58. It was also held in the case of Mahant Shivanath v. Chaudhary Ranbir Singh that a plea in an
election petition that the candidate or his election agent or any person with his consent has committed
a corrupt practice raises a grave charge, proof of which results in disqualification from taking part in
elections of six years.
59. The charge in its very nature must be established by clear and cogent evidence by those who seek
to prove it the court does not hold such a charge proved merely on preponderance of probability the
court required that the conduct attributed to the offender is proved by evidence which
36
establishes it beyond reasonable doubt. Such evidences that stand unproved are not sufficient
37
to hold an election as illegal and violative of the representation of the people act.
60. Allegation of corrupt practice is quasi-criminal in nature, or is substantially akin to criminal charge
because it not only wishes the election but also disqualifies the person concerned from taking part
38
in it for a considerably long time or may extinguish the man’s public life. Charge to be proved
39
beyond doubt. Petition not to be a roving fishing enquiry.
61. Hence, it is duly submitted before this hon’ble court that the respondent’s act of providing
financial support to the victim does not amount to the correct practice of bribe as there are no
evidence beyond reasonable doubt for establishing the same and no nexus between the inducement
and the act of the respondent is present.
62. Also, the financial support provided by the respondent is out of humanity, it is out of courtesy to
mitigate and assuage advantage the suffering of victim. Although, the pain inflicted upon her by the
accused cannot be compensated by any monetary support but this is one way by which help to the
victim to some extent can be provided. The petitioner here in the present case has been utterly
insensitive by considering such financial support as bribe.
35 Manmohan Kalia v. Shri Yash, (1984) 3 SCC 499.

36 Mahant Sheo Nath v. Choudhary Ranbir Singh, (1970) 3 SCC 647.
37 Gopalrao Ravaliji Gulve v. Shantaram Punjaji Ahor, (1999) 8 SCC 574.
38 Razik Ram v. J.S. Chouhan, (1974) 4 SCC 769.
39 Hem Raj v. Ramjilal, (1975) 4 SCC 671.
[14]
3.2 That the financial support by the respondent was for the welfare of the victim
63. It is duly submitted that the financial support provided by the respondent to the victim was for
the welfare and does not amount to a corrupt practice of bribery under the representation of people at
1951.
40
64. In the case of Ghasi Ram v. Dal Singh , the court said that the position of minister is difficult, he
cannot cease to function when elections are coming near. He must of necessity attend to the
grievances otherwise, he must fail. If, every one of his official acts done bona fide is to be
construed against him and an ulterior motive is spelled out of them the administration will come
to standstill. It is for the contended that if the respondent would not provide the financial support
then he would have forgone his duty towards general public to attend to their grievances.
41
65. It was also held in the case of Surinder Singh v. Hardial Singh that amelioration of grievances
of public is innocuous and cannot be construed against a candidate. It is further submitted that the
respondent had no intention of inducing the victim and her family but was just making efforts to help
the victim in best possible way.
66. It is further contended that the promise in the election manifesto cannot be read into section 123 for
declaring it to be a corrupt practice. Thus, promises in the election manifesto do not constitute as a
corrupt practice under the prevailing law. Also, the act of the respondent which is in question in the
present case is regarding schemes which fall within the realm of fulfilling the directive
42
principles of State policy thereby falling within the scope of public purpose. It is also asserted
that the schemes challenged under this petition are in consonance with article 14 of the
Constitution.
67. It is contended that the respondent’s act of providing compensation or financial support to the
victim is as provided by the constitutional scheme under part IV which mentions the Directive
Principles of State Policy and provides that the welfare of the citizen is of utmost importance for the
state which is also protected by saving clause of 31-C of the Constitution of Himal.
68. Here the financial support which is provided is not without any rational or reasoning and is to
fulfill an honest and genuine object of aiding such victims who have suffered the mental and
physical agony after being a victim to such heinous offence of sexual assault. Hence, the
40 Ghasi Ram v. Dal Singh & Others, 1968 SCR (3) 102.
41 Surinder Singh v. Hardial Singh, 1985 SCR (1) 1059.
42 Kesavananda Bharti v. Sate of Kerala, (1973) 4 SCC 225; Deepak Theatre v. State of Punjab, 1992 Supp (1) SCC
684.
[15]
allegations of the petitioner should be held baseless and irrelevant in the present case and only a
medium of defaming the image of the respondent ahead of the upcoming elections.
3.2.1 That freebies do not always amount to corrupt practice

69. It is humbly submitted that the financial support provided by the respondent does not amount to
bribery as also well established in the earlier contentions by the counsel on behalf of the respondent. It
is further submitted that the announcement by the respondent to provide monetary assistance to all
those who come out with their victim stories also does not amount to any kind of corrupt practice as
not all freebies amount to corrupt practice but some also are for the welfare of the people.
43
70. Here the counsel would contend that in the case of Subramaniam v. State of Tamil Nadu , this
hon’ble court held that not every kind of promise made in the election manifesto is a corrupt practice.
Several promises are made for mitigating the grievances of general public. Therefore, it will be
misleading to construe that all promise in the election manifesto would amount to corrupt practice.
71. It is further contented that if every kind of promises made in the election manifesto is declared a
corrupt practice, this will be flawed. Since all promises made in the election manifesto are not
necessarily promising freebies per se, for instance, the election manifesto of a political party promising
to develop a particular locality if they come into power, or promising cent per cent employment for all
young graduates, or such other acts. Therefore, it will be misleading to construe that all promises in
election manifesto would amount to corrupt practice. Likewise, it is not within the domain of the
44
Supreme Court to legislate what kind of promises can or cannot be made in the election manifesto.
72. Also, it is a settled law that the courts cannot issue a direction for the purpose of laying down a
new norm for characterizing any practice as corrupt practice. Such directions would amount to
amending provisions of the said Act. Thus, promises in the election manifesto do not constitute a
45
corrupt practice under the prevailing law.
43 S. Subramaniam Balaji v. State of T.N., (2013) 9 SCC 659.

44 Ibid.
45 Ibid.
[16]
73. Hence, it is established that there are various checks and balances within the mandate of the
Constitution before a public scheme can be implements. As long as the schemes are withdrawn with
appropriate Appropriation Bill, the court has limited power to interfere with such schemes.
3.3 That there is no violation of the constitutional scheme and the respondent’s right to freedom
of speech and expression is violated
74. Speech is God’s gift to mankind. Through speech and expression, a human being conveys his
thoughts, sentiments and feeling to others. Freedom of speech and expression is thus a natural
46
right, which a human being acquires on birth. It is, therefore, a basic right. The freedom of
speech and expression is regarded as the first condition of liberty. It occupies a preferred and
important position in the hierarchy of the liberty, it is truly said about the freedom of speech
that it is the mother of all other liberties. Freedom of speech and expression means the right
to express one’s own convictions and opinions freely by words of mouth, writing, printing,
47
pictures or any other mode.
75. Throughout India’s freedom struggle there was a persistent demand for a written Bill of
Rights for the people of India which included guarantee of free speech. They knew that when
avenues of expression are closed, government by consent of the governed will soon be
48
foreclosed. They endorsed the thinking of Jawaharlal Nehru who said, “I would rather have a
completely free speech and expression with all dangers involved in the wrong use of that
49
freedom than a suppressed of regulated speech and expression.”
76. The freedom of speech and expression is the essence of any civilized state which claims to be
democratic in its spirit and ethos. This freedom of speech and expression plays an important role in the
electoral democracy for voters as well as the politicians and political parties although in India freedom of
speech and expression of political parties is not recognised separately but as is the case with the press, the
freedom emerges from the freedom given to every citizen under article 19 of the constitution the political
parties used this freedom of speech and expression to appeal to
46
“Freedom of Speech and Expression” as a Fundamental Right in In dia and the Test of Constitutional...
ResearchGate, https://www.researchgate.net/publication/306899769_’Freedom_of_Speech_and_Ex
pression’_as_a_Fundamental_Right_in_India_and_the_Test_of_Constitutional_Regulations_The_Constitutional_Pe
rspective (last visited Oct 23, 2022)
47 Lowell v. Griffin, (1939) 303 US 444.
48 Soli. J. Sorabjee, “Freedom of Expression in India”, Law and Justice, 47 (1996), p. 3.

49 Nehru‟s speech on 20 June 1916 in the protest against the Press Act, 1910.
[17]
voters by promising voters various benefits of electing them, to criticize the ideas and policies of
their opponents and give an insight into the vision and plan they have devised for their fellow
citizens.
77. The political communication is also controlled by the article 19(2) as it imposes various
restrictions on freedom of speech and expression. Thus, under the garb of electoral freedom and the
freedom of speech and expression politicians are neither allowed to do any illegal act nor are they
allowed to commit any offence or incite anyone to commit an offence.
78. The political communication is regulated in two-fold manner. Firstly, this freedom is restricted
under article 19 clause 2, so all the general laws of the land restricting the freedom of speech and
expression of the citizen are very well applicable to the politicians and the political parties. Secondly,
the political process, India has a special law as also under the name of Representation of the People
Act 1951. This law under various provisions like section 123, section 125, section 126 and many
more controls and restrict this freedom of speech and expression of politicians and political parties
79. The restriction must be reasonable. It must not be excessive or disproportionate. The procedure
50
and the manner of imposition of the restriction also must be just, fair and reasonable.
80. The freedom of speech and expression as given in article 19 of the constitution is guaranteed to
each and every citizen of the country by the constitution so a citizen by joining a political party or by
nominating himself for elections does not lose this right the right to freedom to speech expression as
available to politicians and political parties can be exercised by them in the form of political
communication political communication can be termed as the role of communication in
politics in the form of speech delivered by a politician or interaction by a politician with the voters
in the electoral process it is the strategic use of communication to influence public knowledge
beliefs and action on political matters the important factor making communication political is not
the source of the message but the purpose and the content behind it is a purposeful
communication about politics.
50 Chintamani Rao v. State of Madhya Pradesh, 1950 SCC OnLine SC 34.
[18]
CONTENTION – 4 THAT THE VICTIM HAS A RIGHT TO PRIVACY AND IS ENTITLED

TO COMPENS ATION FOR THE BREACH OF THE S AME
4.1 That the identity of the victim is already disclosed by the public record
51
82. It is humbly submitted in the case of R. Rajagopal v. State of T.N. , B.P. Jeevan Reddy, J., said that
“right to privacy is subject to the exception, that any publication concerning the aforesaid aspects becomes
unobjectionable if such publication is based upon public records including court records. This is for the
reason that once a matter becomes a matter of public record, the right to privacy no longer subsists and it
becomes a legitimate subject for comment by press and media
52 53
among others.” Further in the case of Rangataju v. Kannayal and ors ,the High Court of Madras
stated that the public documents are prepared by the public servant in discharge of his/her official
duty. It also stated that public documents are those which are made by the public officer in order to
make it available to the public at large so that they could use and refer to it as well. Public records
could include hospital records, prison records, and any other information collected by a state
54
body.
4.1.1 That mere disclosure of a victim’s identity which is already in public record does not amount
to infringement of privacy
83. It is humbly submitted that when information is placed in the public record, it is accessible to
55
public at large and therefore, question of privacy does not arise in such matters. Journalistic
sources gather huge amounts of information from public records and publish that information or
prepare news reports, analyses, documentaries or databases based on what they collect. Media
become the biggest source for dissemination of information, and in fact major disclosure of
identities are made by media, others just react on receiving information, therefore, what has been
already disclosed by some other source cannot make the other person responsible for the breach of
privacy. In the instant matter, the visit of MLA to the residence of victim and presence of media
outside the house of the victim establish the fact that the identity of the victim is prima facia
51 R. Rajagopal v. State of T.N., (1994) 6 SCC 632.

52 Ibid.
53 Rangataju v. Kannayal and ors, 2012 SCC Online Mad. 138.
54 Ibid.
55 Supra note 51.
[19]
disclosed. It can be interpreted from such disclosure that the identity of the victim is disclosed
via public records. where the matter has become a matter of public record, the right to privacy no
56
longer subsists.
4.2 That the Media is liable for the disclosure of the identity of the victim
84. It is humbly submitted that, the strength and importance of media in a democracy is well
recognized. Media is not only a medium to express once feelings, opinions and views, but it is also
responsible and instrumental for building opinions and views on various topics of regional,
national and international agenda. The pivotal role of the media is its ability to mobilize the
57 58
thinking process of millions. In the case of Nipun Saxena v. Union of India , court said that the
name, address, school or other particulars which may lead to the identification of the child in
conflict with law cannot be disclosed in the media. Further it was said that it is the duty of the
media to report every crime which is committed. The media can do this without disclosing the
name and identity of the victim in case of rape and sexual offences against children. The media
not only has the right but an obligation to report all cases. However, media should be cautions
not to sensationalize the same. The media should refrain from talking to the victim because every
time the victim repeats the tale of misery, the victim again undergoes the trauma which he/she
has gone through. Reportage of such cases should be done sensitively keeping the best interest of
59
the victims in mind.
85. Where a child belongs to a small village, even the disclosure of the name of the village may
contravene the provisions of Section 23(2) POCSO because it will just require a person to go to the
village and find out who the child is. In larger cities and metropolis like Delhi the disclosure of the name
of the city by itself may not lead to the disclosure of the identity of the child but any further details with
regard to the colony and the area in which the child is living or the school in which the child is studying
are enough (even though the house number may not be given) to easily discover the identity of the child.
In our considered view, the media is not only bound not to
disclose the identity of the child but by law is mandated not to disclose any material which can
lead to the disclosure of the identity of the child. Any violation of this will be an offence
56 Supra note 51.

57 Garima Rathi, Victim of Sexual Assault and Importance of Media, Journal of legal studies and research,
Volume 2 Issue 2, April 2016.
58 Nipun Saxena v. Union of India, (2020) 18 SCC 499.
59 Ibid.
[20]
60
under Section 23(4). In the instant matter presence of media before the house of the victim
make the identity of the victim apparent and hence, breaches the privacy of the victim.
86. In State of UP v. Raj Narain, it was held that article 19(1)A of the constitution guarantees the
freedom of speech and expression to all the citizens in addition to protecting the rights of the citizens
to know the right to receive information regarding matters of public concern.
87. And in the present case, the media has failed to duly render its duty as the name of the victim and
the other information such as the address of the victim’s house were disclosed by the media even
after knowing its duties towards the citizens very well.
88. The media only is required to disclose the matters of public concerns and hence no information
of the victim and her residence was required to be circulated. Accordingly, under article 19(2) of the
constitution, the state may make a law imposing reasonable restrictions on the exercise of the right to
freedom of speech and expression in the interest of the public on the following grounds; once
freedom be it of any type, must not affect the reputation of status of another person. A person is
known by his reputation more than his wealth or anything else. Constitution considers it as ground to
put restriction on freedom of speech. As in the present case was to be abided by the media.
4.3 That the respondent’s act was bona fide and was for the public good and welfare .
61
89. It is humbly submitted that Article 38 ensure that the State shall strive to promote the welfare
of the people by securing a social order in which social, economic and political justice is
62
animated/informed in all institutions of life. Further, Section 357A of Criminal procedure code
provides for Victim compensation scheme which says that every State Government in co-ordination
with the Central Government shall prepare a scheme for providing funds for the purpose of
compensation to the victim or his dependents who have suffered loss or injury as a result of the crime
and who require rehabilitation. Further in the case of Ankush Shivaji Gaikwad vs. State of
63
Maharashtra , Question for consideration is whether the responsibility of the State ends merely
by registering a case, conducting investigation and initiating prosecution and whether apart from
taking these steps, the State has further responsibility to the victim. Further question is whether
60 The Protection of children from sexual offence, 2012, § 23(4), No. 32, Acts of Parliament, 2012 (India).
61 India Const. art. 38.
62 The Code of Criminal Procedure, 1973, § 357A, No. 2, Acts of Parliament,1973 (India).
63 Ankush Shivaji Gaikwad vs. State of Maharashtra, (2013) 6 SCC 770.
[21]
the Court has legal duty to award compensation irrespective of conviction or acquittal. When the
State fails to identify the accused or fails to collect and present acceptable evidence to punish the
guilty, the duty to give compensation remains. Victim of a crime or his kith and kin have
legitimate expectation that the State will punish the guilty and compensate the victim. There are
systemic or other failures responsible for crime remaining unpunished which need to be
addressed by improvement in quality and integrity of those who deal with investigation and
prosecution, apart from improvement of infrastructure but punishment of guilty is not the only
step in providing justice to victim. Victim expects a mechanism for rehabilitative measures,
including monetary compensation.
90. In the instant matter, MLA never has the intention to disclose the identity, he merely mentions
the name of the victim for naming the schemes. Such Scheme falls within the meaning of "public
purpose" aiming for the fulfilment of the development and welfare of the State as reflected in the
directive principles of State policy.
91. Section 23(2) of Protection of Children from sexual offence provides that No reports in any media
shall disclose, the identity of a child including his name, address, photograph, family details, school,
neighborhood or any other particulars which may lead to disclosure of identity of the child. The entire
object of provisions such as Section 228A of the IPC, 327(2) of the Cr.P.C. , Section
74 of the JJ Act and Section 23 of POCSO is to prevent disclosure of the identity of the victim.
64
Identity constitute several factors, including name, address, photograph, family details or
many other particular. In the instant matter, media presence before the house of the victim makes
the identity of the victim obvious. If such mention would have made by the MLA at some other
place, it would have maintained the anonymity of the victim.
64 Gangadhar Narayan Nayak v. State of Karnataka, 2022 SCC Online SC 337.

[22]
PRAYER
In light of the facts of the case, issues raised, arguments advanced and authorities cited, the
Counsels on behalf of the Respondents humbly pray before the Hon’ble Supreme Court of Himal
to kindly adjudge and declare that: -
a) The doctrine of reverse burden under “SOC Act” is constitutionally valid.

b) The accused does not have a right to privacy and more specifically right to be forgotten
with respect to the Criminal Identification Act,2022.
c) Mr. Sarvesh is not guilty of violation of the Representation of People Act,1951 for
supporting the victim.
d) There is no breach of victim’s right to privacy and is not entitled to any compensation
thereof.
AND/OR
Pass any other order which the bench deems fit in the best interest of Justice, Equity and Good
Conscience, and for this act of kindness the Counsels on behalf of the Respondents as in duty
bound shall forever pray.
All of which is respectfully submitted

__________________________
Sd/-
Counsels for Respondents
[XII]

Reply Filed On Behalf of Respondents To The Criminal Writ Petition Filed Under Article 32 of The Constitution of Himal

Uploaded by

Document Information

Original Title

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Reply Filed On Behalf of Respondents To The Criminal Writ Petition Filed Under Article 32 of The Constitution of Himal

Uploaded by

Copyright:

Available Formats

TC––49R49P

MAIMS 3RD NATIONAL MOOT COURT COMPETITION 2022

BEFORE THE HONORABLE SUPREME COURT OF HIMAL

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

Writ Petition (Crl.) No. ____of 2022

Mr. Bloom……………………...….……….……………………Petitioner No. 1

Union of Himal……………………………………………. Respondent No. 1

MEMORANDUM ON BEHALF OF THE RESPONDENTS DRAWN AND FILED BY THE

SUMMARY OF AURGUEMENTS.......................................................................................... XIII

1.1 Presumption of Constitutionality.......................................................................................1

2.1 That there is no infringement of fundamental rights......................................................... 7

2.2 That right to privacy is not absolute.................................................................................. 8

ABBREVIATION EXTENS ION

U.P. Uttar Pradesh

J&K Jammu and Kashmir

T.N. Tamil Nadu

SOC Sexual Offence against Children

POCSO Protection of Children from Sexual Offences

NDPS Narcotic Drug and Psychotropic Substances

CrPC Code of Criminal Procedure

IPC Indian Penal Code, 1860

UOI Union of India

SCC Supreme Court Cases

SCR Supreme Court Reports

MLA Member of Legislative Assembly

• CODE OF CRIM INAL PROCEDURE,1973.

• A.S. Ramachandra Rao, Commentary on Prevention of Corruption (Law Publishers

• K.N. Chandrasekharan Pillai, General Principles of Criminal Law (Eastern Book

ARTICLES, WEBSITES AND ONLINE DATABASES

• Bribe definition investopedia, https://www.investopedia.com/terms/b/bribe.asp (last

S. NO. NAME OF THE CASE CITATION PAGE

24. Kartar Singh v. State of Punjab (1962) 2 SCR 395 10

Honorable Supreme Court of Himal under Article 32 of the Constitution of Himal.

WHETHER MR. SARVESH SHOULD BE HELD GUILTY OF A VIOLATION OF THE

S PECIFICALLY RIGHT TO BE FORGOTTEN WITH RES PECT TO THE CRIMINAL IDENTIFICATION

CONTENTION – 3 THAT MR. SARVES H IS NOT GUILTY OF VIOLATION OF THE

CONTENTION – 4 THAT THERE IS NO BREACH OF THE VICTIM ’S RIGHT TO PRIVACY AND NO

CONTENTION 1- THAT THE DOCTRINE OF REVERS E BURDEN OF PROOF UNDER

1.1 Presumption of Constitutionality

1 Ram Krishna Dalmia v. Justice S.R. Tendolkar, 1959 SCR 279.

4 Hamdard Dawakhana v. Union of India, (1960) 2 SCR 671.

7 Justin v. Union of India, 2020 SCC OnLine Ker 4956.

1.3.1 That there can be exclusion of mens rea in Statutory Offences

9 Hiten P. Dalal v. Bratindranath Banerjee, 2001 Cri LJ 4647.

13 P N Krishna Lal v. Government of Kerala, 1995 Supp (2) SCC 187.

CONTENTION 2 – THAT THE ACCUS ED DOES NOT HAVE A RIGHT TO PRIVACY

CRIMINAL PROCEDURE (IDENTIFICATION)ACT, 2022

2.1 That there is no infringement of fundamental rights

14 E.P. Royappa v. State of T.N., (1974) 4 SCC 3.

2.2 That right to privacy is not absolute

17 Supra note 15.

24 Prashant Mehta v. State of H.P., 2021 SCC OnLine HP 5438.

CONTENTION 3 - THAT MR. SARVES H S HOULD NOT BE HELD GUILTY OF

26 BRIBE DEFINITION INVESTOPEDIA, https://www.investopedia.com/terms/b/bribe.asp (last visited Oct 22, 2022).

35 Manmohan Kalia v. Shri Yash, (1984) 3 SCC 499.

3.2.1 That freebies do not always amount to corrupt practice

43 S. Subramaniam Balaji v. State of T.N., (2013) 9 SCC 659.

48 Soli. J. Sorabjee, “Freedom of Expression in India”, Law and Justice, 47 (1996), p. 3.

50 Chintamani Rao v. State of Madhya Pradesh, 1950 SCC OnLine SC 34.

CONTENTION – 4 THAT THE VICTIM HAS A RIGHT TO PRIVACY AND IS ENTITLED

51 R. Rajagopal v. State of T.N., (1994) 6 SCC 632.

56 Supra note 51.

64 Gangadhar Narayan Nayak v. State of Karnataka, 2022 SCC Online SC 337.