NMCC Petitioner TC - 202

MEMORANDUM for PETITIONER TEAM CODE: 202
2ND NATIONAL MOOT COURT COMPETITION, 2023
BEFORE THE HON’BLE SUPREME COURT OF WESTEROS
IN THE MATTER OF –
PUBLIC INTER LITIGATION NO. 2552/2021
MR. S. ABHISHEK……………………………..PETITIONER
VS
UNION OF WESTEROS……………………………..RESPONDENT
MEMORANDUM ON BEHALF OF THE PETITIONER
2ND NATIONAL MOOT COURT COMPETITION, 2023 PAGE | 1

MEMORANDUM for PETITIONER
TABLE OF CONTENTS
INDEX OF AUTHORITIES………………………………………………………….…5
STATEMENT OF JURISDICTION…………………………………………………....7
STATEMENTS OF FACTS……………………………………………….…………….8
STATEMENT OF ISSUES…………………………………………………………..... 10
SUMMARY OF ARGUMENTS………………………………………………………...11
ARGUMENTS ADVANCED………………………………………………………...….12
I. WHETHER THE PRESENT WRIT PETITION IS MAINTAINABLE?
I.1 THE PETITIONER HAS REQUISITE LOCUS STANDI
I.2 THERE WAS A VIOLATION OF FUNDAMENTAL RIGHTS
I.3 THERE IS NO ALTERNATE REMEDY
II. WHETHER THE ORDER OF THE HIGH COURT OF DORNE
UPHOLDING THE ORDER OF THE SESSIONS COURT OF DORNIA IS
VALID?
II.1 THERE WAS NO MATERIAL EVIDENCE
II.2 VIOLATION OF THE RIGHT TO SPEEDY TRIAL
II.3 JUDICIAL ORDERS THAT VIOLATE FUNDAMENTAL RIGHTS
ARE VOID
II.3.1 ORDER OF SESSIONS COURT VIOLATES FUNDAMENTAL
RIGHTS
III. WHETHER SECTION 43 D(5) OF THE UNLAWFUL ACTIVITIES
(PREVENTION) ACT, 1976?
III.1 ARTICLE 14 IS VIOLATED
III.1.1 THE SECTION IS NOT BASED ON AN INTELLIGIBLE
DIFFERENTIA
III.1.2 THERE IS NO RATIONAL NEXUS WITH THE OBJECT
III.1.3 THE PROVISION IS ARBITRARY IN ITS APPLICATION
a) The provision has the effect of punishing even the innocent
b) Initially, the discretion is vested in the Public Prosecutor
III.2.1 THE RIGHT TO A FAIR TRIAL IS DENIED TO THE
ACCUSED
III.2.2 THE RIGHT TO SPEEDY TRIAL IS VIOLATED


PRAYER...............................................................................................................................26

INDEX OF AUTHORITIES
CASES
1. Fertilizer Corporation Kangar Union v. Union of India, AIR 1981 SC 844
2. Bandhua Mukti Morcha v. Union of India, (1984) 3 SCC 161
3. A. R. Antulay v. R. S. Nayak and Anr., 1988 AIR 1531
4. Sheela Barsa v. Union of India, 1986 AIR 1773
5. Mohini v. State of Karnataka, (1992) 3 SCC 666
6. Ramesh Thapar v. State of Madras, AIR 1950 SC 124
7. K. K Kouchunni v. State of Madras, AIR 1959 SC 725
8. Borshahsri Buragohain v. State of Assam, 2022 SCC OnLine Gau 1095
9. Maulana Fazlul Karim Qasimi v. The State of Assam, 2022 SCC OnLine Gau 1354
10. The National Investigative Agency v. Akhil Gogoi, 2021 SCC OnLine 78
11. Faizan Khan v. State (NCT of Delhi), 2020SCC OnLine Del 1365
12. Gurpal Singh v. State of Punjab & Anr., 2021 SCC OnLine P&H 163
13. Hussainara Khatoon & Ors v. Home Secretary, State of Bihar, 1979 SCR (3) 169
14. Shaheen Welfare Association v. Union of India, 1996 SCC (2) 616
15. Paramjit Singh v. State (NCT of Delhi), AIR 2000 SC 3473 B
16. K. A. Najeeb v. Union of India, (2021) 3 SCC 713
17. Jahir Hak v. State of Rajasthan, 2021 SCC OnLine Raj 3500
18. Siddharam Satilingappa Mhetre v. State of Maharashtra and Ors., 2010 (4) KLT 930
19. Ashim and Ors v. National Investigative Agency, 2021 SCC OnLine SC 1156
20. Faridabad CT Scan Centre v. D. G. Health Services, (1997) 7 SCC 752
21. M Jagdish Vyas v. Union of India (2010) 4 SCC 150
22. M Nagaraj v. Union of India, (2006) 8 SCC 212
23. Chiranjit Lal Chowdhuri v The Union of India, AIR 1951 SC 41
24. The State of Bombay v F. N. Balsara, AIR 1951 SC 318
25. State of Rajasthan v. Shankar Lal Parmar, (2011) 14 SCC 235.
26. R.K. Garg v. Union of India, (1981) 4 SCC 676
27. Sonubhai Yeshwant Jadhav v. Bala Govinda Yadav, A.I.R. 1983 Bom. 156 (India).
28. R.K. Dalmia v. Justice Tendulkar, A.I.R. 1958 SC 538 (India).
29. Indira Sawhney v. Union of India, (2000) 1 SCC 168 (India)
30. M.G. Badappanavar v. State of Karnataka, (2001) 2 SCC 666 (India)

31. Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209 (India).
32. Jaipur Dev. Auth. v. Daulat Mal Jain, (1997) 1 SCC 35 (India)
33. Yogendra Kumar Jaiswal v. State of Bihar, (2016) 3 SCC 183 (India)
34. State of Mysore v. M.H. Krishna Murthy, (1973) 3 SCC 559: 1973 AIR 1146 (India).
35. Uttar Pradesh Power Corp. v. Ayodhya Prasad, (2008) 10 SCC 139 (India)
36. Indra Sawhney v. Union of India, 1992 Supp (3) SCC 217 (India).
37. Union of India v. M.V. Valliappan, (1999) 6 SCC 259.
38. State of Jammu & Kashmir v. T.N. Khosa, (1974) 1 SCC 19
39. Shayara Bano v. Union of India, (2017) 9 SCC 1
40. Bachan Singh v. State of Punjab, (1980) 2 SCC 684
41. State of Rajasthan v. Balchand alias Baliya, 1978 SCR (1) 535
42. Francis Coralie Mullin v. Adm'r Union Territory of Delhi, (1981) 1 SCC 608 (India)
43. Union of India v. J.N. Sinha, (1970) 2 SCC 458.
44. Moti Lal Saraf v. State of Jammu and Kashmir, (2007) 1 SCC (Cri) 180.
45. Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374.
46. Woolmington v. Director of Public Prosecutions, (1935) UKHL 1;
47. CBI v. Armani Tripathi, 2005 8 SCC 21
BOOKS
1. Durga Das Basu Commentary on the Constitution of India
STATUTES
1. CONSTITUTION OF WESTEROS
2. WESTEROS PENAL CODE, 1860
3. CODE OF CRIMINAL PROCEDURE, 1973
4. UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1976

STATEMENT OF JURISDICTION
The Petitioner has approached the Hon'ble Supreme Court of Westeros under Article 32 of
the Constitution of Westeros, which reads as follows:
"32. Remedies for enforcement of rights conferred by this Part — (1) The right to move the
Supreme Court by appropriate proceedings for the enforcement of the rights conferred by
this Part is guaranteed. (2) The Supreme Court shall have power to issue directions or
orders or writs, including writs in the nature of habeas corpus, mandamus, prohibition, quo
warranto, and certiorari, whichever may be appropriate, for the enforcement of any of the
rights conferred by this Part. (3) Without prejudice to the powers conferred on the Supreme
Court by clauses (1) and (2), Parliament may by law empower any other court to exercise
within the local limits of its jurisdiction all or any of the powers exercisable by the Supreme
Court under clause (2). (4) The right guaranteed by this article shall not be suspended except
as otherwise provided for by this Constitution."
The present memorial on behalf of the Petitioner sets forth the facts, contentions and
arguments in the present case.

STATEMENT OF FACTS
[BACKGROUND]
Westeros, after gaining independence, witnessed numerous disturbing incidents, which

required it to make laws such as the Unlawful Activities (Prohibition) Act, 1967 (UAPA for
short).
UAPA was implemented in 1960 to tackle the insurgency of certain groups and prevent the
demands of secession of the country. The 2019 amendment of the Act extended its scope
beyond unlawful activities and enabled the identification of individuals or organisations as
"terrorists".
Mr S. Abhishek, a Dorne resident and an active critic of the current government, stated in a
podcast that the nation would be better off if the Prime Minister "either resigns or dies". This
attracted criticism from people on social media, and some even considered it an active threat
to the PM.
Four days later, the PM was assassinated by suicide bombers at a political rally in Dorne. The
Police Forces, on 10th July 2021, arrested six suspects, including Mr Abhishek. Except for
him, the other five members were part of an organisation named "Fighters for True
Freedom".
[ENSUING EVENTS]
The Central Government exercising their powers under Section 35 via a Gazette Notification
designated "Fighters for True Freedom" as terrorists. Mr Abhishek has also been deemed a
part of this community due to his being a part of that community and in light of his
statements on his podcast.
The charges against the accused were filed under Sections 120B, 121A, 124A, 153B, 155 and
302, read with Section 34 of the Westeros Penal Code, 1860, under Sections 16, 18 and 20 of
the UAPA.
All the six accused applied for bail on 12th January 2022 in the sessions court of Dornia;
however, the case only came up for hearing on 14th June 2022 while all the accused were
held in jail. The public prosecutor did not appear for the first four hearings, which resulted in

the Court hearing the application of bail on 22nd October. After going through the records,
bail was denied because the accusations against the accused may be true.
Mr Abhishek then appealed to the High Court of Dorne, which refused to set aside the said
Order of the Sessions Judge and upheld the validity of the said Order.
Mr Abhishek has now challenged both the orders of the Sessions Court of Dornia and the
High Court of Dorne by way of a writ to the Supreme Court. He has also challenged the
validity of Section 43D of the UAPA because it violates Articles 14, 20 and 21 of the
Constitution of Westeros, 1950. The Writ Petition has been accepted, and the hearing is on
4th February 2023.

STATEMENT OF ISSUES
ISSUE I
WHETHER THE PRESENT WRIT PETITION IS MAINTAINABLE?
ISSUE II
WHETHER ORDER OF THE HIGH COURT OF DORNE UPHOLDING THE ORDER OF

THE SESSIONS COURT OF DORNIA VALID?
ISSUE III
WHETHER SECTION 43D OF THE UNLAWFUL ACTIVITIES (PREVENTION) ACT,

1976 IS CONSTITUTIONALLY VALID?

SUMMARY OF ARGUMENTS
ISSUE 1: WHETHER THE PRESENT WRIT PETITION IS MAINTAINABLE?

The Counsel, on behalf of the Petitioner, submits to the Hon'ble Court that the writ petition in
the form of PIL is maintainable on account of the violation of fundamental rights guaranteed
under art 14, 20, and 21. In addition to this, the Counsel also submits that the writ petition is
maintainable on the grounds of:
1.1) the Petitioner has requisite locus standi
1.2) there is no alternate remedy available
ISSUE 2: WHETHER THE ORDER OF THE HIGH COURT OF DORNE

UPHOLDING THE ORDER OF THE SESSIONS COURT OF DORNIA IS VALID?
The Counsel, on behalf of the Petitioner, submits to the Hon'ble Court that the Order of the
High Court of Dorne upholding the Order of the Sessions Court of Dornia is not valid on the
grounds that judicial orders that violate fundamental rights are void. The Counsel, on behalf
of the Petitioner, also submits the following contentions:
2.1) Lack of material evidence
2.2) Violation of Fundamental Rights
ISSUE 3: WHETHER SECTION 43 D(5) OF THE UNLAWFUL ACTIVITIES

(PREVENTION) ACT, 1976?
The Counsel for the Petitioner humbly submits before this Hon'ble Court that Section 43D
of the Unlawful Activities (Prevention Act), 1976 is violative of the 'right to equality' as far
as it does not classify the test of reasonable classification. The provision provides
unreasonable discretion to the Court in matters of granting bail, which has the effect of the
arbitrary application. The 'right to life and personal liberty' of accused persons is also violated
since it does not satisfy the requirement of just, fair and reasonable 'procedure established by
law'. Further, the Act also violates the principle of "presumed innocent until proven guilty

ARGUMENTS ADVANCED
ISSUE 1: WHETHER THE PRESENT WRIT PETITION IS MAINTAINABLE?

It is humbly submitted before the Hon'ble Supreme Court of Westeros that the present writ
petition is maintainable on the grounds that firstly, The Petitioner has requisite locus standi
[1.1], secondly, There was a violation of Fundamental Rights [1.2] and thirdly, There is no
Alternate Remedy [1.3].
1.1 THE PETITIONER HAS REQUISITE LOCUS STANDI.
The Counsel for the Petitioner humbly submits that the Petitioner has sufficient Locus
Standi to file a writ in the form of a Public Interest Litigation (hereinafter referred to as
'PIL').
Locus Standi is the right of appearance in a court of justice1 on a particular matter. A
person acting in a bona fide2 manner with public interest will have the locus standi to file a
public interest litigation. The term "locus standi" also refers to the legal capacity to
challenge legislation, Order or decision.3 The Petitioner has filed a writ petition under Art.
32 as a PIL on behalf of the public for the violation of his fundamental rights.4 A writ filed
by an individual under Art. 32, acting in the public interest on behalf of the society for the
violation of fundamental rights of people of the society is maintainable.5
In the present case, the Petitioner has sufficient locus standi to file a PIL as he is acting in a
bona fide manner in the public interest.6 The Petitioner's fundamental rights have been
violated, and while challenging the Order or decision of the lower courts, the Petitioner is
acting in the public interest to safeguard the fundamental rights of the larger public.7
1.2 THERE WAS A VIOLATION OF FUNDAMENTAL RIGHTS.
The Counsel for the Petitioner humbly submits that the Petitioner's fundamental rights
under Art. 14,20 and 21 were violated and hence this PIL.
1
Black’s Law Dictionary 1090 (11th ed. 2019)
2
Fertilizer Corporation Kamgar Union v Union of India, AIR 1981 SC 844
“Whenever there is a public wrong or public injury caused by an act or omission of the State or public authority
which is contrary to the Constitution or the law, any member of the public acting bona fide and having sufficient
interest can maintain an action for redressal of such public wrong or public injury.
3
V G Ramachandran, Law of Writs, 26 (6th ed., 2006)
4
Moot Proposition ¶ 9.
5
Bandhua Mukti Morcha v. Union of India (1984) 3 SCC 161.
6
7
Art. 14 guarantees people Equality before the law and Equal Protection of the laws within
the territory of Westeros,8 and Art. 20 provides protection in respect of conviction of
offences.9
Section 43(D) of the Unlawful Activities (Prevention) Act, 1967 (hereinafter referred to as
"UAPA") violates both Art. 14 and Art 20. Personal liberty granted under Art. 14, and
Protection provided for convicts under Art. 20 are grossly violated in an arbitrary manner
under Section 43(D) of the UAPA. When the police require custody of someone for more
than 24 hours for investigative purposes, the Magistrate authorises it by sending the
arrested person on 15 days remand, after which he is produced in Court.10 Through such
court appearances, the law seeks to guarantee that the deprivation of liberty is justified.
According to UAPA, the custodial remand is 30 days11 instead of 15 days and also gives
the police permission to seek custody not only at the beginning but at any given time
during the ongoing investigation. This difference between the general law applicable and
the UAPA clearly violates one's personal liberty and does not protect any convicts. Hence,
Art. 14 and Art. 20 are violated in the present case.
The Right to a Speedy Trial is enshrined in the Constitution under Art. 2112 and is available
for the parties at all stages, including investigation, inquiry, trial, appeal, revision, and
retrial.13 In the present case, the Petitioner has been denied this right, and his bail
application has been delayed over and over again.14 This Honourable Court had held in one
of its judgements that if the accused is not tried speedily and if the case remains pending
before the Magistrate or the Sessions Court for an unreasonable length of time, then it is
evident that his fundamental Right to a Speedy Trial has been violated unless the Superior
Court passed an interim order or if the delay was caused by the accused himself. 15 There was
no delay on the part of the Petitioner, who is the accused, and no interim order had been passed
by a superior court, which makes it evident that the Petitioner's Right to a Speedy Trial
guaranteed under Art. 21 is violated.
Therefore, it is humbly submitted that the Petitioner's fundamental rights guaranteed under Art.
14,20, and 21 are violated in the present case.
8
INDIA CONST. art. 14.
9
10
Code of Criminal Procedure 167
11
The Unlawful Activities (Prevention) Act, 1967, § 43D, cl. 2
12
13
A.R. Antulay v. R. S. Nayak and Anr 1988 AIR 1531
14
15
Sheela Barsa v. Union of India 1986 AIR 1773
1.3 THERE IS NO ALTERNATE REMEDY.
The Counsel for the Petitioner humbly submits that the present petition is maintainable in
the absence of an alternate and efficacious remedy.
Approaching the Hon'ble Supreme Court under the Art. 32 for the protection of
fundamental rights itself is a fundamental right.16 It is very evident that approaching the
High Court under its rightful jurisdiction of Art. 226 before approaching the Hon'ble
Supreme Court is an unnecessary approach.17 It was held before this Hon'ble Court that the
mere existence of an adequate alternate legal remedy could not be per se a sufficient
ground to dismiss a petition under Art. 32.18 The Petitioner has directly approached the
Hon'ble Supreme Court under its rightful jurisdiction of Art. 32 without approaching the
High Court under Art. 226.19 Though there is an adequate remedy available under Art. 226,
it does not stand as sufficient ground to dismiss this petition. Hence, the present petition in
the form of a PIL stands maintainable in the absence of an alternate remedy.
ISSUE 2: WHETHER THE ORDER OF THE HIGH COURT OF DORNE

UPHOLDING THE ORDER OF THE SESSIONS COURT OF DORNIA IS VALID?
16
Mohini v. State of Karnataka, (1992) 3 SCC 666.
17
Ramesh Thapar v. State of Madras, AIR 1950 SC 124.
18
K. K. Kouchunni v. State of Madras, AIR 1959 SC 725.
19
It is humbly submitted before the Hon'ble Supreme Court of Westeros that the Order of the
High Court of Dorne upholding the Order of the Sessions Court of Dornia is not valid on the
grounds that [2.1] There was no material evidence, [2.2] Right to Speedy Trial was violated
and, [2.3], Judicial Orders that violate fundamental rights are void.
2.1 THERE WAS NO MATERIAL EVIDENCE.
The Counsel for the Petitioner humbly submits that there was no material evidence against
the Petitioner in the present case. The Petitioner was booked and arrested under relevant
sections of IPC and UAPA on the basis of the mere statements on his podcast and the fact
that he belonged to a community known for past insurgent acts, which led to the formation of
the UAPA.20
In the case of Hanumant v. State of Madhya Pradesh, it was observed by this Hon'ble Court
that there should be concrete material as evidence and that courts cannot imagine missing
links.21 In the present case, the evidence that was recorded against the Petitioner was far-
fetched and did not prove his involvement in the assassination of the Prime Minister. The
Sessions Court, during the bail application hearing, clearly relied on the prosecution's
unreasonable statements imagining missing links between the Petitioner and the case. The
Court has heavily disregarded the exact involvement of the Petitioner and did not emphasise
concrete evidence.
In Borshahsri Buragohain v. State of Assam, the Court held that a mere Facebook post
could not be taken in as evidence to show involvement in terrorist activities.22 The accused in
the case had posted a poetic line on her Facebook, which was seditious in nature, but the
Court granted bail due to a lack of material evidence.
The Gauhati High Court in Maulana Fazlul Karim Qasimi v. The State of Assam case
granted bail to the accused, who was seen supporting terrorist organisations through a
Facebook post where he mentioned, "Taliban in Afghanistan are not terrorists." The Court
held that a mere Facebook Post without any other "incriminating material" could not amount
to a cognisable offence. Although supporting terrorist organisations are punishable u/s 39 of
UAPA, a Facebook post cannot be considered "incriminating material."23 The Petitioner's
podcast regarding the Prime Minister also cannot be regarded as incriminating material,
considering it was merely a podcast and does not prove any direct link to the Prime Minister's
assassination.
20
21
AIR 1952 SC 343.
22
2022 SCC OnLine Gau 1095.
23
2022 SCC OnLine Gau 1354
In The National Investigative Agency v. Akhil Gogoi, The Gauhati High Court granted bail
to the accused, who was arrested under UAPA for his involvement in the anti-CAA protests
on the grounds that in order to make a case of a grave offence under UAPA, the "dominant
intention" of the accused to commit a terrorist act should be established.24 It was also held
that "provocative speeches, acts of violence, and civil disturbances"25 do not come under that
threshold automatically. Here the NIA had failed to prove the additional intent of the accused,
and thus, bail was granted. In the present case, the prosecution has not submitted any further
evidence confirming the Petitioner's intention to commit the offences he was booked for
under UAPA. The Sessions Court relied only on the podcast statement of the Petitioner,
which does not act as evidence to prove his intention. The Petitioner is known for giving
controversial statements in his podcasts. Since this was not his first "controversial" statement,
it is evident that there was no dominant intention on the part of the Petitioner to commit any
such offence.
In Faizan Khan v. State (NCT of Delhi),26 the Court granted bail to the accused because the
material on record did not reveal the commission of the offences charged, and they seemed
like bald statements of the witnesses.
In one of its judgments, the Punjab and Haryana High Court held that although evidence
cannot be examined during bail, the courts should not accept all the findings of the Police as
true.27 The Court also held that while the allegations in the case were serious, there was no
material evidence to connect the accused to the offence and held that if there is no material to
connect the accused to the offence, then there is no bar against bail.
In the impugned case, there was no concrete evidence present against the Petitioner which
proves his intention or involvement. It is essential to present evidence that proves the
intention or commission of the offences charged for making the arrest reasonable and valid
under UAPA. A mere statement and his association with a particular community neither
create a link to the alleged offences nor proves his intention.
Therefore, it is submitted that there was no material evidence against the Petitioner.
2.2 VIOLATION OF RIGHT TO SPEEDY TRIAL
The Right to Speedy Trial, as mentioned in the earlier contentions, is a fundamental right
guaranteed to everyone under Art. 21. By disposing of cases as soon as possible, innocent
24
2021 SCC OnLine SC 78.
25
Id.
26
2020 SCC OnLine Del 1365
27
Gurpal Singh v. State of Punjab & Anr. 2021 SCC OnLine P&H 163
people will be protected from undue punishments and will also make the Judiciary more
efficient.
Sec. 482, read with 483 CrPC, states that every single measure available must be taken to
dispose of cases within six months. It also states that it is the Judiciary's responsibility to keep
a check on the cases that haven't been disposed of and that adjournments would not be
granted unless the reasons are beyond the Judiciary's control. A fiscal deficiency,
overcrowding of courts and inadequate resources cannot be considered reasonable
circumstances to deprive a person's Fundamental Right to Speedy Trial.
In Hussainara Khatoon versus Home Secretary, State of Bihar, Govt. of Bihar, Patna,
Justice P. N. Bhagwati observed that when a person is not given a speedy and just trial, then
his fundamental right guaranteed under Art. 21 is violated. This Hon'ble Court, in this case,
had also held that "The State has a Constitutional obligation to provide speedy trial. The
State is under a Constitutional mandate to ensure speedy trial, and whatever is necessary for
this purpose has to be done by the State".28
This Hon'ble Court in Shaheen Welfare Association v. Union of India had observed that
"gross delay in disposal of such cases would justify the invocation of Article 21 and the
consequential necessity to release the undertrial on bail."29
In Paramjit Singh v. State (NCT of Delhi), the Hon'ble Court had laid down that "Even if the
case is under stringent criminal legislation including anti-terror laws, prolonged delay in a
trial necessitates granting of bail."30
In the case of K. A. Najeeb v. Union of India,31 where the accused was in jail with the trial
being delayed over and over, this Hon'ble Court had relied on the Shaheen Welfare
Association32 judgment and on Paramjit Singh33 judgment where it was held that and held
that UAPA does not stop constitutional courts from granting bail if the fundamental rights of
the accused are violated. Even if the accused is booked under grave and severe offences, if
there is a violation of fundamental rights, then the person is entitled to bail. The accused was
granted bail on the ground that his fundamental rights guaranteed under Art. 21 had been
violated due to prolonged incarceration. The Hon'ble Court had also granted bail to the
28
Husaainara Khatoon & ors. V. Home Seceretaty, State of Bihar, 1979 SCR (3) 169
29
Shaheen Welfare Association v. Union of India, 1996 SCC (2) 616
30
Paramjit Singh v. State (NCT of Delhi), AIR 2000 SC 3473 B
31
(2021) 3 SCC 713
32
supra note 29.
33
supra note 30.
accused in Jahir Hak v. State of Rajasthan34 by observing a delay in the trial, violating his
fundamental right.
In the present case, although the charges against the Petitioner are under stringent criminal
legislation, there was a gross and prolonged delay in the hearing of his bail application which
is evidently violative of his fundamental right guaranteed under Art. 21. In such situations
where fundamental rights are violated, it becomes a ground for bail,35 and the Petitioner was
yet denied bail by the Sessions Court of Dornia which the High Court of Dorne later upheld.
Therefore, it is submitted that the Fundamental Right to Speedy Trial of the Petitioner is
violated.
2.3 JUDICIAL ORDERS THAT VIOLATE FUNDAMENTAL RIGHTS ARE VOID
The Counsel for the Petitioner humbly submits that Judicial Orders that violate fundamental
rights are void. It is conferred in the Constitution under Art. 13(2) that the State shall not
make any law that violates any right mentioned under Part III of the Constitution, and if a law
is abridging such a right, then it is considered void.36 Under Art. 13(3)(a), it is stated that
"law" includes any "Ordinance, order, bye-law, rule, regulation, notification, custom or
usage having the territory of India the force of law."37
2.3.1 THE ORDER OF THE SESSIONS COURT VIOLATES
FUNDAMENTAL RIGHTS
The Order passed by the Sessions Court denying bail to the Petitioner violates his
fundamental rights. The Petitioner was arrested under UAPA for mere statements in
his podcast, along with being a part of the community known for committing
insurgent acts in the past, leading to the formation of UAPA.38 As stated in the earlier
contentions, there was no material evidence presented by the police to show the
dominant intention or involvement of the Petitioner in the assassination of the Prime
Minister. Since no such concrete evidence was presented, this arrest is unreasonable.
In the present case, the Petitioner was booked and arrested under Sections 16, 18 and
20 of the UAPA and under Sections 120B, 121A, 124A, 153B, 155 and 302 read with
34 of the IPC.39 The Petitioner's statement, "nation would be better off if the
incumbent Prime Minister, Mr Rajendra Todi either resigns or dies." is no reasonable
ground to book him under the aforementioned charges.
34
2021 SCC OnLine Raj 3500
35
supra note 31.
36
INDIA CONST. art. 13 § 2.
37
INDIA CONST. art. 13 § 3 cl. a.
38
39
Moot Proposition 6.
In the case of Siddharam Satlingappa Mhetre vs State of Maharashtra and Ors,40

the Court had stated that "the gravity of the offence and the role of the accused must
be comprehended very well and that arrest without reason is a violation of
fundamental rights." Here the arrest of the Petitioner was clearly without reason and
hence, violative of his fundamental rights.
In Ashim & Ors v. National Investigative Agency, the Hon'ble Court had held that "While
deprivation of personal liberty for some period may not be avoidable, the period of
deprivation pending trial/appeal cannot be unduly long. At the same time, timely delivery of
justice is part of human rights, and denial of speedy justice is a threat to public confidence in
the administration of justice."41 While the hearing has a prolonged delay, the Fundamental
Right to Personal Liberty is also violated along with the Fundamental right to Speedy Trial.
In the impugned case, the Sessions Court of Dornia did not grant bail to the accused in spite
of his fundamental rights being violated. With reference to K. A. Najeeb's judgment, the
Court was obliged to grant bail to the Petitioner. Denying the bail application makes the
Order itself violative of fundamental rights. The High Court of Dorne upheld such a Judicial
Order,42 which is not valid since such an Order passed by the Sessions Court was void under
Art. 13(2).43
Therefore, it is submitted that the Order of The High Court of Dorne upholding the Order of
the Sessions Court of Dornia is not valid.
ISSUE 3: WHETHER SECTION 43D OF THE UNLAWFUL ACTIVITIES

(PREVENTION) ACT, 1967, CONSTITUTIONALLY VALID?
It is humbly submitted before this Hon'ble Court that § 43D of the Unlawful Activities
(Prevention) Act, 1967, a provision that allows for the preventive detention of an individual if
they are suspected of involvement in terrorist activities or other unlawful activities, is
40
2010 (4) KLT 930.
41
2021 SCC OnLine SC 1156.
42
43
supra note 21.
unconstitutional as it violates the fundamental rights provided by the Constitution of

Westeros.
The core foundation of democracy, according to Westero's Constitution, is fundamental
rights. Inconsistency with fundamental rights is a valid ground for a provision to be
unconstitutional.44
The basis of this lies in Part III of the Constitution. Article 13(2) states, "The State shall not
make any law which takes away or abridges the rights conferred by this Part and any law
made in contravention of this clause shall, to the extent of the contravention, be void"45
Therefore, as per Article 13(2) of the Constitution, the impugned section46 is void and liable
to be struck down.
Furthermore, § 43D of the Unlawful Activities (Prevention) Act, 1967, is unconstitutional as
the impugned section47 also violates Article 14 [3.1], Article 21[3.2] and Article 20 [3.3]
enshrined in Part III of the Westeros Constitution.
[3.1] ARTICLE 14 IS VIOLATED

Article 14 of the Westeros Constitution provides the right to equality to every person,
whether citizen or not.48 Every human being is entitled to equality before the law and equal
protection of the laws within its territory.49 Article 14 thus means that 'equals should be
treated alike.' 50 This provision corresponds to the equal protection clause of the 14th
Amendment of the US Constitution and adheres to the same concept of equality as in the
UDHR.51 The concept of equality allows differential treatment, but it prevents distinctions
that are not properly justified.52 A Principle of Article 14 is that it does not forbid reasonable
classification for the legislation.53 However, it is violated only when there is no reasonable
basis.54
44
Durga das Basu, Commentary on the Constitution of India 689 (8th ed. 2007).
45
INDIA CONST. art. 13 § 2.
46
43D
47
Supra
48
In Re Special Reference No. 1 of 2012, (2012) 10 SCC 1.
49
Faridabad CT. Scan Centre v. D.G. Health Services, (1997) 7 SCC 752
50
M. Jagdish Vyas v. Union of India, (2010) 4 SCC 150
51
The Universal Declaration of Human Rights, 1948, art. 7.
52
M. Nagaraj v. Union of India, (2006) 8 SCC 212.
53
Chiranjit Lal Chowdhuri v The Union of India, AIR 1951 SC 41; The State of Bombay v F. N. Balsara,
AIR 1951 SC 318
54
State of Rajasthan v. Shankar Lal Parmar, (2011) 14 SCC 235.
It is submitted that Section 43D of UAPA is violative of Art 14 of the Westeros Constitution
because First, it is not based on an intelligible differentia [3.1.1]; Second, there is no rational
nexus with the object [3.1.2], and last, it is manifestly arbitrary [3.1.3].
[3.1.1] THE SECTION IS NOT BASED ON AN INTELLIGIBLE DIFFERENTIA
A legislature is entitled to make a reasonable classification for purposes of
legislation.55 However, the basis of classification cannot be anything ultra vires,56 i.e.
it is expressly prohibited by the Constitution.57 Equality is a basic feature58 of the
Westeros Constitution, and any treatment of equals unequally will be ultra vires59 and
violative of Art. 1460. Also, In the case of Indira Sawhney vs Union Of India And
Ors61, it was stated that "The constitutional principle that equals cannot be treated
unequally and unequal cannot be treated equally based as it violates article 14."
In the present case, Section 43D of UAPA is a provision that allows for the preventive
detention of an individual if they are suspected of involvement in terrorist and unlawful
activities. It is argued that such classification in the section is unfair and has resulted in
dire cases of injustice.
The definitions provided under Sections 2 and 3 of the UAPA are vague in nature in
regard to the definition of unlawful activities and terrorism. This has allowed the
government to misuse its power by not creating a classification on the degree of the
offence. In Sidhique Kappan vs The State of Uttar Pradesh62, a journalist was
arrested under UAPA for filing an FIR of a rape case. In (CONCERNED CASE
LAW)63, students were arrested in Srinagar under UAPA for cheering for Pakistan
during a cricket match64. Mere protesting or being related to banned organisations or
associations have the same stringent restrictions for bail against them as people who
55
R.K. Garg v. Union of India, (1981) 4 SCC 676
56
Sonubhai Yeshwant Jadhav v. Bala Govinda Yadav, A.I.R. 1983 Bom. 156 (India).
57
R.K. Dalmia v. Justice Tendulkar, A.I.R. 1958 S.C. 538 (India).
58
Indira Sawhney v. Union of India, (2000) 1 SCC 168 (India); M.G. Badappanavar v. State of Karnataka,
(2001) 2 SCC 666 (India); Ajit Singh (II) v. State of Punjab, (1999) 7 SCC 209 (India).
59
Jaipur Dev. Auth. v. Daulat Mal Jain, (1997) 1 SCC 35 (India); Yogendra Kumar Jaiswal v. State of Bihar,
(2016) 3 SCC 183 (India); State of Mysore v. M.H. Krishna Murthy, (1973) 3 SCC 559 : 1973 A.I.R. 1146
(India).
60
Uttar Pradesh Power Corp. v. Ayodhya Prasad, (2008) 10 SCC 139 (India); Indra Sawhney v. Union of
India, 1992 Supp (3) SCC 217 (India).
61
Supra 3
62
Sidhique Kappan vs The State of Uttar Pradesh 2020 SCC OnLine Ker 647
63
Id.
64
supra
have committed grave offences like terrorism. Since unequals are being treated
equally, there is a clear violation of Article 14.
[3.1.2] THERE IS NO RATIONAL NEXUS WITH THE OBJECT
If there is a rational nexus based on which differentiation has been made with the
object sought to be achieved by a particular provision, then such differentiation is not
discriminatory and does not violate the principles of Article 14 of the Constitution.65
To find out the reasons and the justification for the classification, the Court has
guided to refer to the objects and reasons appended to a Bill.66 The object of the Act in
question shall be ascertained from an examination of its title, preamble and
provision.67 As stated in its preamble, UAPA aims to combat terrorism and provide a
wider framework for preventing unlawful activities. However, when the government
arrests people unlawfully on the accusation of terrorism, the rational nexus with the
object is abandoned.
[3.1.3] THE PROVISION IS ARBITRARY IN ITS APPLICATION.
It is humbly submitted before this Hon'ble Court that the test of manifest arbitrariness
has been laid down to invalidate plenary legislation under Article 14.68 The Westeros
Supreme Court has held that any legislation which is excessive and disproportionate
will be manifestly arbitrary.69 It is humbly submitted to this Hon'ble Court that
Section 43 D of UAPA is manifestly arbitrary in its application because there are
instances of curtailing liberty even of the innocent[a]; the authority to grant bail is
initially vested within the public prosecutor [b].
[a] The Provision has the effect of punishing even the innocent
According to the National Crimes Record Bureau (NCRB) under the Ministry of
Home Affairs report, 10,552 persons were arrested under the UAPA, only 253
persons or 2.39%, were convicted, 516 persons or 4.89%, were acquitted, and 133
persons or 1.26% were discharged from 2014 to 2020. About 94% of the detainees
have been facing prosecution and are often denied bail under stringent provisions of
65
Union of India v. M.V. Valliappan, (1999) 6 SCC 259.
66
State of Jammu & Kashmir v. T.N. Khosa, (1974) 1 SCC 19
67
Durga das Basu, Commentary on the Constitution of India 689 (8th ed. 2007).
68
Westeros express Newspaper Ltd. v. Union of India, (1985) 1 SCC 641.
69
Shayara Bano v. Union of India, (2017) 9 SCC 1; Bachan Singh v. State of Punjab, (1980) 2 SCC 684
the UAPA.70 This shows that innocent people are being arrested arbitrarily and denied
their rights under Article 14.
It is humbly submitted that section 43D has the effect of punishing the innocent and
detaining them for an extended period. Section 43D (2) of the Act allows a person to
be detained up to 180 days till the completion of an investigation if the police are
unable to complete their investigation in the given 90 days, which is already an
extended period from the normal given under Section 167 of CRPC71. According to
Section 167 of the Code of Criminal Procedure, detention beyond 24 hours is not
permitted even if the police investigation is incomplete. Thus, Section 43D(2) of
UAPA is an exception to the exception under ordinary criminal law. In 2020, United
Nations special rapporteurs72 declared that UAPA contravenes several articles of the
Universal Declaration of Human Rights and the International Covenant on Civil and
Political Rights, stating that "UAPA enables the police to keep an accused under
custody for up to 180 days without any charge against her, for the purposes of
investigation. Clearly, the Act is a manifest violation of the principles of
reasonableness, necessity and proportionality."
In the case of Gudikanti Narasimhulu v. Public Prosecutor, High Court of AP73 the
Court held that the provision of bail protects and safeguards the principle of liberty
and freedom enshrined under Article 21 of the Westeros Constitution and has a direct
nexus to it. Furthermore, under article 43D(4) of UAPA, the accused are not given the
right to get an anticipatory bail which again is manifestly arbitrary
[b] Initially, the discretion is vested in the public prosecutor

It is humbly submitted to the Hon'ble Court that in Westeros Law, bail is the rule, and
jail is the exception74. So when section 43D(5) applied restriction against bail of an
accused arrested under offence in chapters IV and VI of UAPA such as that the Public
prosecutor has to be heard before providing bail to the accused and there should be
reasonable grounds to believe that there is no prima facie case against the accused to
get bail. This completely strips the accused of the right to bail as his/her bail comes at
70
Annual Report 2019-20, Ministry of Home Affairs, Government of India,
https://www.mha.gov.in/sites/default/files/AnnualReport_19_20.pdf
71
Code of Criminal Procedure, 1973, 167
72
https://spcommreports.ohchr.org/TMResultsBase/DownLoadPublicCommunicationFile?gId=25219
73
Gudikanti Narasimhulu v. Public Prosecutor, High Court of AP, 1978 AIR 429
74
State of Rajasthan v. Balchand alias Baliya, 1978 SCR (1) 535
the discretion of the public prosecutor, and it makes it virtually impossible for the
accused to get bail. This discretion is unjustified since it impacts judicial discretion,
and there are no protections for the accused, making the entire procedure unjust and
arbitrary.
It is Humbly submitted to the Hon'ble Court that Art. 21 of the Westeros Constitution
guarantees the fundamental right to life and liberty.75 The word 'law' in Article 21 does not
mean merely 'enacted law' but incorporates principles of natural justice so that a law to
deprive a person of his life or personal liberty cannot be valid unless it incorporates these
principles in the procedure laid down by it.76 It is humbly submitted that the current provision
is violative of Article 21 because it does not provide the right to natural justice and fair trial
to the accused [3.2.1]; further, it violates the right to a speedy trial of the accused [3.2.2] and
lastly, since the due process of the provision violates the fundamental rights of the accused,
the object of the law becomes insignificant
[3.2.1] THE RIGHT TO A FAIR TRIAL IS DENIED TO THE ACCUSED
It is humbly submitted before this Hon'ble Court that under the Westeros
Constitution, the 'right to life and personal liberty' also guarantees a 'right to fair trial'
to the accused.77 The Supreme Court of India observed that each person has an inbuilt
right to be dealt with fairly in a criminal trial.78 The presumption of innocence and the
duty of the prosecution to prove the guilt inter alia are the two general principles of a
fair trial,79which stand reversed in this provision.
Further Supreme Court stated in the case of Sanjay Chandra v. CBI,80 "It makes
sense to assume that a man on bail has a better chance to prepare or present his case
than one remanded in custody."
The principle of innocent until proven guilty has been inverted under section 43D(5)
of UAPA, where the prosecution has to prove that the case is prima facie true against
the accused. In the case of Nation Investigation Agency v. Zahoor Ahmed Watali,81 it
was stated by this Hon'ble Court that "The elaborate examination or dissection of the
evidence is not required to be done at this stage. The Court is merely expected to
75
Francis Coralie Mullin v. Adm'r Union Territory of Delhi, (1981) 1 SCC 608 (India)
76
Union of India v. J.N. Sinha, (1970) 2 SCC 458.
77
Moti Lal Saraf v. State of Jammu and Kashmir, (2007) 1 SCC (Cri) 180.
78
Zahira Habibullah Sheikh v. State of Gujarat, (2006) 3 SCC 374.
79
Woolmington v. Director of Public Prosecutions, (1935) UKHL 1;
80
Sanjay Chandra v. CBI, 2011 SCC OnLine SCC 578
81
Nation Investigation Agency v. Zahoor Ahmed Watali (2019) 5 SCC 1.
record a finding on the basis of broad probabilities regarding the involvement of the
accused in the commission of the stated offence or otherwise." The use of words
"reasonable grounds to believe the accusation against a person is not prima facie true"
shifts on the burden of proof on accuse. Further, the wording of the section is as such
that it is putting more restrictions on bail, which violates the principle of "Bail is the
rule and jail is the exception."
Further, in the case of CBI v. Armani Tripathi,82 the hon'ble Court has given eight
elements that are supposed to be considered by the Court to decide if the accused
should be given bail or not. However, section 43D(5) of UAPA is concerned with
only prima facie cases, and the other seven elements are not considered. This violates
the right to a fair trial of the accused and hence violates article 21 of the Constitution.
[3.2.2] THE RIGHT TO SPEEDY TRIAL IS VIOLATED
It is humbly submitted to the Hon'ble Court that Article 21 of the Westeros
Constitution is violated when a speedy trial is not being given to a person. The right is
under the ambit of the accused's right to life and liberty. In the case of Husaainara
Khatoon & ors. V. Home Secretary, State of Bihar83 , the apex court observed that
"The State has a Constitutional obligation to provide a speedy trial. The State is under
a Constitutional mandate to ensure speedy trial, and whatever is necessary for this
purpose has to be done by the State."
It has been seen in plenty of cases, such as Union of India v KA Najeeb 84 where the
accused was in jail for a prolonged period of 5 years while the trial was going on and
still has a long period to be completed, which violates their right to a speedy trial,
because of which he got bail. The same was seen in Jahir Hak v. State of Rajasthan 85.
Section 43D (2), which allows an extension of the detention period pre-trial for up to
6 months, also violated the Right to Speedy Trial as the police ask for extra 90 days
for mere problems such as translations or in the name of the pandemic 86. Due to this,
pre-trial detention itself becomes a punishment as people are in jail for years straight.
It is humbly submitted to the Hon'ble Court that No person accused of committing a crime
82
CBI v. Armani Tripathi, 2005 8 SCC 21
83
supra note 28.
84
(2021) 3 SCC 713
85
Jahir Hak v. State Of Rajasthan, 2021 SCC OnLine Raj 3500
86
https://www.outlookindia.com/website/story/opinion-clause-by-clause-taking-liberties-with-human-
liberty/380672
shall be required to testify against himself, according to Article 20(3) of our Constitution.
Because requiring him to testify would put the onus of proof on the accused rather than the
burden on the prosecution to establish guilt, it is known as the right against self-
incrimination.
The concept of innocent until proven guilty is an internationally recognised concept and is
even covered under Article 14 of the International Covenant on Civil and Political Rights or
the ICCPR87, to which India is a signatory. The National Human Rights Commission, while
speaking on the concept of presumption of innocence, opined that – "Breaching fundamental
principles of a fair trial, including the presumption of innocence, is prohibited at all times."88
It is humbly submitted that section 43D violated Article 20 as the principle of innocent until
proven guilty has been inverted under section 43D(5) of UAPA, where the prosecution has to
prove that the case is prima facie true against the accused. And in turn, puts the burden on the
accused.
PRAYER
87
International Covenant on Civil and Political Rights, Art. 14
88
https://www.ijlmh.com/wp-content/uploads/2020/02/An-Analysis-on-the-validity-of-the-Unlawful-Acts-
Prevention-Act.pdf
Wherefore, in the light of arguments advanced, issues raised, authorities cited, and facts
stated, it is humbly prayed before the Hon'ble Supreme Court of Westeros by the Counsel for
the Petitioner to adjudge and declare that:
I. The Writ Petition in the form of PIL is maintainable.
II. The Order of the High Court of Dorne upholding the Order of the Sessions Court
of Dornia is valid.
III. The Section 43D of the Unlawful Activities (Prevention) Act, 1976 is
unconstitutional
And being satisfied may also pass any order, direction, or relief that the Court may deem
fit in the interest of justice, fairness, equity, and good conscience. All of which is most
respectfully and humbly prayed

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MEMORANDUM for PETITIONER TEAM CODE: 202

2ND NATIONAL MOOT COURT COMPETITION, 2023

BEFORE THE HON’BLE SUPREME COURT OF WESTEROS

PUBLIC INTER LITIGATION NO. 2552/2021

MEMORANDUM ON BEHALF OF THE PETITIONER

2ND NATIONAL MOOT COURT COMPETITION, 2023 PAGE | 1

2ND NATIONAL MOOT COURT COMPETITION, 2023 PAGE | 2

III.3 ARTICLE 20 IS VIOLATED

2ND NATIONAL MOOT COURT COMPETITION, 2023 PAGE | 3

2ND NATIONAL MOOT COURT COMPETITION, 2023 PAGE | 4

2ND NATIONAL MOOT COURT COMPETITION, 2023 PAGE | 5

2ND NATIONAL MOOT COURT COMPETITION, 2023 PAGE | 6

Westeros, after gaining independence, witnessed numerous disturbing incidents, which

2ND NATIONAL MOOT COURT COMPETITION, 2023 PAGE | 7

2ND NATIONAL MOOT COURT COMPETITION, 2023 PAGE | 8

WHETHER THE PRESENT WRIT PETITION IS MAINTAINABLE?

WHETHER ORDER OF THE HIGH COURT OF DORNE UPHOLDING THE ORDER OF

WHETHER SECTION 43D OF THE UNLAWFUL ACTIVITIES (PREVENTION) ACT,

2ND NATIONAL MOOT COURT COMPETITION, 2023 PAGE | 9

ISSUE 1: WHETHER THE PRESENT WRIT PETITION IS MAINTAINABLE?

ISSUE 2: WHETHER THE ORDER OF THE HIGH COURT OF DORNE

ISSUE 3: WHETHER SECTION 43 D(5) OF THE UNLAWFUL ACTIVITIES

2ND NATIONAL MOOT COURT COMPETITION, 2023 PAGE | 10

ISSUE 1: WHETHER THE PRESENT WRIT PETITION IS MAINTAINABLE?

1.3 THERE IS NO ALTERNATE REMEDY.

ISSUE 2: WHETHER THE ORDER OF THE HIGH COURT OF DORNE

In the case of Siddharam Satlingappa Mhetre vs State of Maharashtra and Ors,40

ISSUE 3: WHETHER SECTION 43D OF THE UNLAWFUL ACTIVITIES

unconstitutional as it violates the fundamental rights provided by the Constitution of

[3.1] ARTICLE 14 IS VIOLATED

[b] Initially, the discretion is vested in the public prosecutor

2ND NATIONAL MOOT COURT COMPETITION, 2023 PAGE | 26

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