H.R.S.P.

M’s SARSENAPATHI HAMBIRRAO MOHITE

LAW COLLEGE, RAJGURUNAGAR
LLB 3RD Year- 2nd SEMESTER MOOT COURT EXAM 2022-2023

MOOT COURT NO -2

NAME –SUPRIYA EKNATH SALVE

LLB – 3 YEAR
WRITTEN SUBMISSION ON BEHALF OF RESPONDENT

BEFORE
THE HON’BLE SUPREME COURT OF INDIA

In the Matter of
ADM Jabalpur
………….Petitioner
Vs.
Shivakant Shukla
…………Respondent

Under ‘Articles 21 and 226 of the Indian Constitution’

 TABLE OF CONTENTS

1. INDEX OF AUTHORITIES --- Page 3

2. STATEMENT OF JURISDICATION --- Page 4

3. STATEMENT OF FACTS --- Page 5

4. ISSUED RAISED --- Page 6

5. SUMMARY OF AGRUMENTS --- Page 7

6. ADVANCE ARGUMENTS --- Page 8

7. PRAYER --- Page 9

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1. INDEX OF AUTHORITIES:

Court Case Referred:

State of Uttar Pradesh v Raj Narain, AIR 1975 SC 865.

Books and Statues Referred:

Constitution of India 1950

Websites:

https://en.wikipedia.org/
https://indiankanoon.org/
https://www.livelaw.in/

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2. STATEMENT OF JURISDITION:

Article 21- states that “No person shall be deprived of his life or personal liberty except
according to a procedure established by law.

Article 226- It is a constitutional right. Article 226 cannot be suspended, even in an

emergency. It authorizes a high court to issue writs such as mandamus,
habeas corpus, prohibition, certiorari, and quo warranto. It empowers High
Courts to enforce citizens' fundamental rights and for some other purposes.
A writ petition can be filed before any High Court within whose jurisdiction
the cause of action arises, either wholly or in part. It is immaterial if the
authority against whom the writ petition is filed is within the territory or not

Article 352- The President can proclaim emergency if he is satisfied that the security of
India or any part thereof is threatened either by-
1. War or
2. External aggression or
3. Internal disturbance.
In the whole of India or a part of its territory

Article 358- It provided that all six freedoms in Article 19 would be automatically
suspended upon a proclamation of emergency.

Article 359- It empowered the President to suspend the right to enforce

fundamental rights guaranteed by Part III of the Constitution while
the proclamation of emergency is in operation.

Unlike Article 358, under Article 359 the suspension of right to move any court for
the enforcement of fundamental rights is not automatic. It can only be brought about by a
Presidential order

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3. STATEMENT OF FACTS:

1. On 25th June 1975 , “in the application of influence granted by clause ( 1 ) of Art
352 ( Emergency proclamation ) of the Indian Constitution , the President
proclaimed that there was a severe crisis threatening the security of the country
with internal disturbances .
2. On 27th June 1975 in the application of the control granted by clause ( 1) of Art 359,
the President proclaimed that the right of every citizen, along with non –citizens ,to
approach a tribunal for the imposition of the rights granted by Art 14, 21 and 22
of the Indian constitution and any procedures, continuing before any tribunal for the
imposition of the aforementioned rights will stay deferred for the duration for
which the declarations of emergency, implemented according to clause (1) of Art
352 of the Indian Constitution on The June 25th 1975 were in force .
3. The Presidential decree of 27th June 1975 additionally clarified that this should be
in extension to any decree rendered before the day of the aforementioned decree
pursuant to clause (1) of Art 359 of the Indian Constitution, and not in derogation.
4. On 8th January 1976, a notification was issued in the application of the control
granted by clause (1) of Art 359 of the Indian Constitution , according to which the
President proclaimed that the right of every citizen to approach a tribunal, for the
imposition of the rights granted by Art 19 of the Indian Constitution.

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4. ISSUED RAISED:

1. Whether, by declaration of Emergency after a decree from the President, can the writ
of Habeas Corpus be valid in High Court by a citizen questioning his illegal
detention?

2. Was the suspension of Art 21 valid by rule of law?

3. Does detenu hold locus standi in tribunal during the duration of Emergency?

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5 SUMMARY OF AGRUMENTS:

1. Whether, by declaration of Emergency after a decree from the President, can

the writ of Habeas Corpus be valid in High Court by a citizen questioning his
illegal detention?
- As per the defendants, “the specific aim of Art 359(1) is to lift limitations
on the authority of the legislature, so that it would be at liberty to create
legislations in breach of the fundamental rights stated in the governmental
decree during the operation of the emergency.

- The fundamental object of Art 359(1) was to prevent approaching the

Apex court by Art 32 for the imposition of specific rights. This restriction
by legislation does not have any impact on the imposition of common law
and statutory rights of private freedom in the High Court by Art 226 of the
Indian Constitution. The presidential orders placed were only legitimate
with regard to fundamental rights, and didn’t expand to natural, common
or statutory law.

- The Executive may only operate contrary to and in favour of its people to
the limit set by appropriate legislation. In no circumstances, Art 352 or the
declaration of an emergency enhance the executive’s authority of the State
from what is given in Art 162 of the Indian Constitution. The claim
continues, as there is a clear legislation governing preventive detention
passed by the Parliament and the Executive must comply with the
requirements imposed by that legislation.

2. Was the suspension of Art 21 valid by rule of law?

- Art 21 is not the only source of the right to life and to personal freedom.
Non-fundamental constitutional rights such as those found in compliance
with Art 256, 265 and 361(3) or contractual or natural rights to personal
freedom are not influenced by the governmental decree. Statutory rights
can be stripped only from the statue and not from the executive floor.

3. Does detenu hold locus standi in tribunal during the duration of Emergency?
- The State and its authorities have the right to detain only if the asserted
deed resulting in confinement falls under MISA Section 3 and fulfils all
the conditions found therein.” If any requirement stays incomplete, the
act’s confinement is deemed ‘beyond the limits.’

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6. ADVANCE ARGUMENTS:

“Article 21 protects the right to life and personal freedom against its unconstitutional
violation by the State. In the event of an immediate suspension of Article 21 pursuant to Article
359, the Court cannot challenge the validity or legitimacy of the decision of that State. Article
358 is far broader than Article 359 because constitutional rights as a whole are suspended
whereas Article 359 does not suspend any freedoms. While the emergency provisions of Article
359(1) grant the Executive special powers and privileges, they do not negate the fundamental
components of the separation of powers sovereignty, resulting in a system of checks and
balances and the Executive’s restricted powers.”

“The relationship between state and executive is erroneous, and the consequence of
suspending those rights would result only in expanded powers for legislature that may establish
laws against fundamental rights. This act should not be treated as the Executive’s ‘power’ or
right thereof. There is a legitimate degree to which a State may behave in or against the people
and in this case, there has been a strong abuse of the power of a single person’s personal
political benefit. It is nowhere stated during Emergency, that the power of the State ‘increases’
from its original power under Article 162.”

“State also reserves the right of arrest only if the alleged crime falls within the scope
of section 3 of MISA and fulfils all of its conditions. If any condition is not met, then detention
is beyond State control. The Supreme Court ruling is considered to be the highest to date
erroneous judgment.” Justice Khanna’s dissenting opinion also has greater importance than the
decision of the majority including the then chief justice. Indira Gandhi’s government’s
misguided intent was recognized when Justice Khanna asked the first odd question. “Life is
also mentioned in Article 21 and would the Government’s argument extend to it also?”

Justice Khanna entirely confined to the decision of Makkhan Singh v. State of Punjab
in which he stated: “If in challenging the validity of his detention order, the detenu is pleading
any right outside the rights specified in the order, his right to move any court in that behalf is
not suspended, because it is outside Article 359(1) and consequently outside the Presidential
order itself. Let us take a case where a detenu has been detained in violation of the mandatory
provisions of the Act. In such a case, it may be open to the detenu to contend that his detention
is illegal for the reason that the mandatory provisions of the Act have been contravened. Such
a plea is outside Article 359(1) and the right of the detenu to move for his release on such a
ground cannot be affected by the Presidential order”.

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7. PRAYER-

Its most humbly prayed before the Hon’ble Supreme court that
 The Hon’ble court should decide on the given complaint and give justice to the
respondent.
 The court may be also be pleased to pass any other order which the court may fit in
light of justice equity and conscience.
All of which is respectfully submitted on behalf of the respondent

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