Team Code: TC-51R: Before

1ST NHRC - SLS NAGPUR MOOT COURT COMPETITION
Team Code: TC-51R
NHRC – SLS NAGPUR NATIONAL MOOT COURT COMPETITION 2024
Before,
THE HON’BLE SUPREME COURT OF ZENDIA
WRIT PETITION FILED UNDER ARTICLE 32 OF THE

CONSTITUTION OF ZENDIA
MR. X ..................................................................................................................... PETITIONER
VERSUS
UNION O ZENDIA…………………………………………………………….……RESPONDENT
CLUBBED WITH
MS. ABY ……………………………………………………………………………PETITONER

VERSUS
UNION OF ZENDIA…………………………………………………………………RESPONDNET
CLUBBED WITH
ZENDIA PEOPLE’S FORUM …………………….…………….……………………PETITIONER

VERSUS
UNION OF ZENDIA………………………………………………………………RESPONDENT
ON SUBMISSION TO THE SUPREME COURT OF ZENDIA
WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS
Memorandum for Respondent 1

TABLE OF CONTENTS
INDEX OF AUTHORITIES...................................................................................................... 4
LIST OF ABBREVATIONS ..................................................................................................... 7
STATEMENT OF JURISDICTION.......................................................................................... 8
STATEMENT OF FACTS ........................................................................................................ 9
ISSUES RAISED ..................................................................................................................... 11
SUMMARY OF ARGUMENTS ............................................................................................. 12
ARGUMENTS ADVANCED ................................................................................................. 14
ISSUE 1: WHETHER THE BLANKET BAN IMPOSED ON THE VOTING RIGHTS OF

UNDER-TRIAL PRISONERS UBDER SUB SECTION 5 OF SECTION 62 OF THE
REPRESENTATION OF THE PEOPLE ACT 1951 CONSTITUTIONALLY VALID? .. 14
1.1 Sub Section 5 of Section 62 of The Representation of People’s act 1951 aims to
strike a balance between the rights of citizens and the need for a robust electoral process.
14
1.2 Restrictions under Section 62(5) of the Representation of the People Act 1951 is not
violative of any fundamental rights guaranteed by constitution....................................... 18
1.3 Right to vote is subject to the limitation imposed by the statute which can be exercised
only in the manner provided by the statute....................................................................... 20
ISSUE 2: WHETHER THE DENIAL OF THE CONJUGAL VISITATION RIGHTS TO

MS. ABY’S INCARCERATED HUSBAND FOR THE SAKE OF PROGENY IS
VIOLATIVE OF THEIR FUNDAMENTAL RIGHTS? ..................................................... 23
2.1 No statutory provisions provide for conjugal rights to the prisoners ......................... 23
2.1.1 Graveness of the matter ........................................................................................... 23
2.2 The Right to Procreate While Being Incarcerated Is a Refutable Right ..................... 24
2.2.1 Restriction by Jail Authorities Comes under Exceptions to Article 8 of ECHR ..... 25
2.2.2 Against Purpose of Imprisonment, Social Fabric and Order ................................... 26
2.3.1 Environment of the Jail will be disturbed ................................................................ 27
ISSUE 3: WHETHER THE PETITION FILED BY THE ZENDIA PEOPLE’S FORUM

(ZPF) IN THE SUPREME COURT FOR THE TESTING OF ALL THE PRISONERS FOR

HIV IN ZENDIA IS JUSTIFIED OR NOT? ....................................................................... 27
3.1 It is not justified under constitution of Zendia ........................................................... 28
3.1.1 The action demanded is not justified under Art. 21 ................................................ 28
3.1.2 The action demanded is not justified under Art. 14 ................................................ 30
PRAYER .................................................................................................................................. 32

INDEX OF AUTHORITIES
Cases
Anukul Chandra Pradhan, Advocate Supreme Court v. Union of India, (1997) 6 SCC 1.
....................................................................................................................................... passim
Bhondar v. Emperor, AIR 1931 CAL 601. ........................................................................ 27, 28
G. Bhargavi v. State Of Andhra Pradesh and Others 2012 SCC OnLine AP 635. .................. 26
Jagan Nath v. Jaswant Singh, [1954] S.C.R. 892. ................................................................... 20
Jasvir Singh v. State of Punjab, 2014 SCC OnLine P&H 22479. ......................... 22, 23, 25, 26
KS Puttaswamy v. Union of India, (2017) 10 SCC 1. ............................................................. 27
Kuldip Nayar v. Union of India, AIR 2006 SC. ...................................................................... 20
Mahendra Kumar Shastri v. Union of India, AIR 1983 SCC 299. .................................... 15, 16
Manohar Lal Sharma v. Union of India, (2014) 141 DRJ 157. ................................... 16, 20, 21
Mr X v. Hospital Z, (1998) 8 SCC 296.................................................................................... 27
N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Other, [1952] S.C.R. 218.
.............................................................................................................................................. 20
National Legal Service Authority v. Union of India, 2014 SCC OnLine SC 328. .................. 29
People's Union of Civil liberties v. Union of India, AIR 2003 SC 2363. .......................... 18, 20
Randhir Kumar v. The Hon’ble Chancellor of Universities, 2023 SCC OnLine Pat 2830. .... 18
Rasikbhai Ramsingh Rana And Anr v. State Of Gujarat And Ors, 1999 CRILJ 1975. .......... 28
S. Radhakrishnan v. Union of India, AIRONLINE 1999 SC 550. .......................................... 15
Samira Kohli v. Prabha Manchanda Dr. & ANR, 1 (2008) CPJ 56 (SC). ............................... 28
Selvi v. State of Karnataka, (2010) 7 SCC 263. ...................................................................... 27
State of AP v. Challa Ramkrishna Reddy, (2000) 5 SCC 712. ................................................ 27
The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome
(Prevention and Control) Act, 2017, § 5, No. 16, Acts of Parliament, 2017 (India). .......... 27
Statutes
Prisons Act, 1894, § 27, No. 9, Acts of Parliament, 1894 (India). .......................................... 22
The Representation of The People Act,1951, § 62(5), No. 43, Acts of Parliament, 1951 (India)
.................................................................................................................................. 13, 14, 17
Constitutional Provisions

INDIA CONST. art. 19. ..................................................................................................... 18, 20
International Conventions
European Convention on Human Rights, art. 8, Council of Europe, 1950.............................. 24
International Statues
The Representation of the People Act, 1983, § 3, No. c.2, Acts of Parliament, 1983 (United
Kingdom). ............................................................................................................................ 18
International Cases
Aliev v. Ukraine, CCPR/C/78/D/781/1997; E.L.H. v. The United Kingdom, No. 32094/96. 24
Banning v. Looney, 213 F.2d 771, 771 (10th Cir.). ................................................................. 22
Gerber v. Hickman, 291 E3d 617 (9th Cir. 2002). ............................................................ 25, 26
Hirst v. United Kingdom, (No. 2) (2005). ............................................................................... 18
Lyons v. Gilligan, 382 F. Supp. 198, 200 (N.D. Ohio 1974)................................................... 25
R v. Secretary of State for Home Department, [2001] EWCA Civ 472. ................................. 25
School Board of Nassau County v. Arline, 480 US 273 (1987). ............................................. 29
Others
Conjugal Visitation Rights and the Appropriate Standard of Judicial Review for Prison
Regulations, 73 Mich. L. Rev., (1974) chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://repository.law.umich.edu/cgi/viewc
ontent.cgi?article=4269&context=mlr. ................................................................................ 24
Dr. Shruti Goyal, CONJUGAL RIGHTS OF PRISONERS, Bharati Law Review, 64 (2018), chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://docs.manupatra.in/newsline/articles/
Upload/22A58DF8 EA77-472B-B0B5-F06ECDF5EB61._Goyal_Dr._Asst._Prof._57-
73_Family.pdf. ..................................................................................................................... 22
Human Rights Watch, https://www.hrw.org/report/2010/04/14/sentenced-stigma/segregation-
hiv-positive-prisoners-alabama-and-south-carolina (last visited Jan. 22, 2024)............ 28, 29
M. Gagnon, J.D. Jacob & L. Cormier, Total control: a critical analysis of mandatory HIV
testing in U.S. prisons, 9 j. Forensic nurs. 154 (2013). ........................................................ 27
National Library Of Medicine, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3102457/ (last
visited Jan. 22, 2024)............................................................................................................ 28
Ralf Jürgens & World Health Organization, Interventions to Address HIV in Prisons: HIV
Care, Treatment and Support, (2007). ................................................................................. 29
REPRODUCTIVERIGHTS.ORG, https://reproductiverights.org/wp-

content/uploads/2020/12/SecuringReproductiveJusticeIndia-Chpt08.pdf (last visited Jan.

16, 2024)............................................................................................................................... 24
Ruth Shonle Cavan, Marital Relationships of Prisoners in Twenty-Eight Countries, 49 JCLC
133, (1958), chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://scholarlycommons.law.northwestern
.edu/cgi/viewcontent.cgi?httpsredir=1&article=4692&context=jclc. .................................. 24

LIST OF ABBREVATIONS
& And
§ Section
AIR All India Reporter
Art Article
Etc Et cetera
EWCA England & W/ales Court of Appeal, Civil
Division.
Hon’ble Honourable
ICCPR International Covenant on Civil and Political
Rights
IPC Indian Penal Code
NZ
New Zealand
Ors Others
Para Paragraph
RPA The Representation of The People Act
SC Supreme Court
SCC Supreme Court Case
SCR Supreme Court Reporter
UDHR Universal Declaration on Human Rights
UK United Kingdom
UKSC United Kingdom Supreme Court
UN United Nations
US United States of America
V Versus

STATEMENT OF JURISDICTION
The Respondent humbly submits that the present petitions have been filed before this
Honorable Court invoking its writ jurisdiction under Article 32 of the Constitution of Zendia.
This memorandum sets forth the facts, contentions and arguments for the Respondent in the
given case.

STATEMENT OF FACTS
Introduction: Zendia, a quasi-federal democracy with a diverse population, is a major global

player economically and diplomatically. The country faces challenges in its legal and criminal
justice systems, as highlighted in the following incidents. Zendia’s Constitution serves as the
supreme law, outlining fundamental principles, government structure, and citizens' rights.
Despite its comprehensive framework, certain legal and societal issues persist.
Judicial Hierarchy and Backlog: The legal system in Zendia operates in a pyramid structure,
with the Supreme Court overseeing lower courts. However, the country faces a considerable
backlog, with approximately 50 million pending cases. Zendia experienced a 20% overall rise
in criminal cases in 2022, notably with a 35% increase in cases against women and children.
Despite efforts, the conviction rate dropped from 57% in 2021 to 51% in 2022.
Prison Population and Overcrowding: Zendia's prisons house nearly one million individuals,
with 75% being under-trials. The prisons, though ensuring basic needs, face challenges of
overcrowding due to the surge in crime rates.
Mr. X's Political Candidacy: Mr. X, a political figure with boards and posters across his
constituency, is a probable candidate in the upcoming general elections. He emphasizes his
commitment to individual rights and freedom, drawing from personal experiences of
confinement. In October 2023, Mr. X petitioned the Supreme Court, challenging an election
law provision that bans under-trials, civil prisoners, and convicts from voting. He advocates
for the voting rights of under-trials.
Mr. Y's Murder Conviction: In Zikaland, Mr. Y faced a murder conviction after eloping and
solemnizing his marriage. His death sentence was confirmed by the Supreme Court of Zendia,
leading to a unique legal situation. Ms. Aby, Mr. Y's wife, filed a petition in the Supreme Court
seeking conjugal visitation rights for her incarcerated husband, arguing for the preservation of
their conjugal life for the sake of progeny.
ZPF's HIV Testing Petition: Zendia People’s Forum (ZPF) filed a petition seeking mandatory
HIV testing for all prisoners, emphasizing the need for identification and treatment of HIV+

inmates. The alarming report indicated the prevalence of HIV in three different prisons. The
Supreme Court of Zendia consolidated the petitions related to prisoners' rights, setting the stage
for a comprehensive legal examination of issues pertaining to voting rights, conjugal visitation,
and healthcare within the prison system.

ISSUES RAISED
I.
WHETHER THE BLANKET BAN IMPOSED ON THE VOTING RIGHTS OF
UNDER-TRIAL PRISONERS UBDER SUB SECTION 5 OF SECTION 5 OF THE
REPRESENTATION OF THE PEOPLE ACT 1951 CONSTITUTIONALLY VALID?
II.
WHETHER THE DENIAL OF THE CONJUGAL VISITATION RIGHTS TO MS.
ABY’S INCARCERATED HUSBAND FOR THE SAKE OF PROGENY IS
VIOLATIVE OF THEIR FUNDAMENTAL RIGHTS?
III.
WHETHER THE PETITION FILED BY THE ZENDIA PEOPLE’S FORUM (ZPF)
IN THE SUPREME COURT FOR THE TESTING OF ALL THE PRISONERS FOR
HIV IN ZENDIA IS JUSTIFIED OR NOT?

SUMMARY OF ARGUMENTS
ISSUE 1: WHETHER THE BLANKET BAN IMPOSED ON THE VOTING RIGHTS

OF UNDER-TRIAL PRISONERS UBDER SUB SECTION 5 OF SECTION 5 OF THE
REPRESENTATION OF THE PEOPLE ACT 1951 CONSTITUTIONALLY VALID?
It is humbly submitted before the hon’ble court that sub section 5 of section 62 of The
Representation of People’s act 1951 serves a legitimate legislative aim as it prevents
criminalization of politics and that Right to vote is not a fundamental right but a statutory
right created by a stature and the limitations on these rights as prescribed by statue are
legitimate. The disability which is imposed under Section 62 (5) of the Representation
of the People Act is equally applicable to all persons similarly situate mentioned therein
and they are even prevented from contesting the election or offering themselves as
candidates for such election. The provision is reasonable and in public interest to
maintain purity in electing peoples’ representatives and there is no arbitrariness or
discrimination involved. A provision made in the election law to promote the object of
fight and fair elections and facilitate maintenance of law and order which are the essence
of democracy must, therefore, be so viewed. More elbow room to the legislature for
classification has to be available to achieve the professed object.
ISSUE 2: WHETHER THE DENIAL OF THE CONJUGAL VISITATION RIGHTS TO

MS. ABY’S INCARCERATED HUSBAND FOR THE SAKE OF PROGENY IS
It is humbly submitted that denial of conjugal visitation rights to Ms. Aby’s convicted
husband Mr. Y for the sake of progeny does not violate any fundamental rights enshrined
under the Constitution. There is no statutory provision for the allowance of conjugal
visitation rights. Moreover, provision of such rights can lead to disruption of social fabric
and is in complete contravention to the principles and purposes of imprisonment.
ISSUE 3: WHETHER THE PETITION FILED BY THE ZENDIA PEOPLE’S FORUM

(ZPF) IN THE SUPREME COURT FOR THE TESTING OF ALL THE PRISONERS

FOR HIV IN ZENDIA IS JUSTIFIED OR NOT?
It is humbly that, the call for compulsory HIV testing and segregation of prisoners in
Zendia is contested on constitutional grounds. Under Article 21, the right to privacy is
asserted, emphasizing prisoners' entitlement to fundamental rights, including
confidentiality. Legal provisions like the HIV/AIDS Act and judicial decisions are
invoked to argue against the violation of principles like fairness and reasonableness. The
plea challenges the justification under Article 14, stressing the constitutional
commitment to equality and opposing discrimination based on health status. It
recommends a comprehensive approach to HIV prevention in prisons, asserting that
segregation is not grounded in science or public policy, and poses mental and social well-
being risks for affected individuals due to stigmatization and inequality.

ARGUMENTS ADVANCED
ISSUE 1: WHETHER THE BLANKET BAN IMPOSED ON THE VOTING RIGHTS

OF UNDER-TRIAL PRISONERS UBDER SUB SECTION 5 OF SECTION 62 OF
THE REPRESENTATION OF THE PEOPLE ACT 1951 CONSTITUTIONALLY
VALID?
1. It is humbly submitted that sub section 5 of section 62 of The Representation of

People’s act 1951 is constitutionally valid because (i) Section 62(5) of The
Representation of People’s act 1951 aims to strike a balance between the rights of
citizens and the need for a robust electoral process. (ii) Restrictions under Section 62(5)
of the Representation of the People Act 1951 is not violative of any fundamental rights
guaranteed by constitution. (iii) Right to vote is subject to the limitation imposed by the
statute which can be exercised only in the manner provided by the statute.
1.1 Sub Section 5 of Section 62 of The Representation of People’s act 1951 aims to
strike a balance between the rights of citizens and the need for a robust electoral
process.
2. Sub section 5 of Section 621 of The Representation of People’s Act 19512 is a provision
made in the election law which exclude persons with criminal background of the kind
specified therein, from the election scene as voters. The object is to prevent
criminalization of politics and maintain probity in elections. Any provision enacted
with a view to promote this object must be welcomed and upheld as subserving the
constitutional purpose. The elbow room available to the legislature in classification
depends on the context and the object for enactment of the provision.3
3. The existing conditions in which the law has to be applied cannot be ignored in
adjudging its validity because it is relatable to the object sought to be achieved by the
legislation. Criminalization of politics is the bane of society and negation of democracy.
It is subversive of free and fair elections which is a basic feature of the Constitution.
1
The Representation of The People Act,1951, § 62(5), No. 43, Acts of Parliament, 1951 (India).
2
The Representation of The People Act,1951, No. 43, Acts of Parliament, 1951 (India).
3

4. A provision made in the election law to promote the object of free and fair elections
and facilitate maintenance of law and order which are the essence of democracy must,
therefore, be so viewed. More elbow room to the legislature for classification has to be
available to achieve the professed object.
5. There are other reasons justifying this classification. It is well known that for the
conduct of free, fair and orderly elections, there is need to deploy considerable police
force. Permitting every person in prison also to vote would require the deployment of
a much larger police force and much greater security arrangements in the conduct of
elections.4
6. Apart from the resource crunch, the other constraints relating to availability of more
police force and infrastructure facilities are additional factors to justify the restrictions
imposed by sub-section (5) of Section 62 of the act. A person who is in prison as a
result of his own conduct and is, therefore, deprived of his liberty during the period of
his imprisonment cannot claim equal freedom of movement, speech and expression
with the others who are not in prison.5
7. The classification of persons in and out of prison separately is reasonable. Restriction
on voting of a person in prison results automatically from his confinement as a logical
consequence of imprisonment. A person not subjected to such a restriction is free to
vote or not to vote depending on whether he wants to go to vote or not; even he may
choose not to go and cast his vote. In view of the restriction on movement of a prisoner,
he cannot claim that he should be provided the facility to go and vote.
8. Moreover, if the object is to keep persons with criminal background away from the
election scene, a provision imposing a restriction on a prisoner to vote cannot be called
unreasonable.
9. In view of the settled law on the point, it must be held that the right to vote is subject
to the limitations imposed by the statute which can be exercised only in the manner
provided by the statute; and that the challenge to any provision in the statute prescribing
the nature of right to elect cannot be made with reference to a fundamental right in the
Constitution. The very basis of challenge to the validity of sub-section (5) of Section
62 of the Act6 is, therefore, not available.
10. The constitutional validity of the provisions of Section 62(5) of the Representation of
4
5
6

the People Act 1951 has been upheld by a two Judge Bench of this Court in Mahendra
Kumar Shastri Vs Union of India7 and later by a three Judge Bench of this Court in
Anukul Chandra Pradhan, Advocate Supreme Court Vs Union of India.8
11. In S. Radhakrishnan vs. Union of India9 judgment dated 17th August, 1999, the
Supreme Court in paragraph 210 has held as “2. The issue raised in this petition is no
longer reintegrate. In Anukul Chadra Pradhan v. Union of India, a three Judge Bench
of this Court speaking through Verma, CJI (as His Lordship then was) examined the
ambit and scope of Section 62(5) of the Representation of the People Act and after
observing that criminalization of politics is the bane of society and negation of
democracy, rejected the challenge to the validity of the said Section. It was opined that
the object of Section 62(5) is to prevent criminalization of politics and maintain probity
in elections and that any provision which furthers that aim and promotes the object has
to be welcomed, as subserving a great constitutional purpose. We are in respectful
agreement with the view expressed by the three Judge Bench in Anukul Chandra
Pradhan’s case11 (supra) and are not persuaded to take a different view. This writ
petition, therefore, fails and is dismissed. No costs.”
12. In view of the aforesaid decision Section 62(5) of the Act is constitutionally valid and
right to vote is not a fundamental right but it is a statutory right and it can be made
limited by the statute.
13. The Hon’ble Supreme Court in Mahendra Kumar Shastri vs. Union of India, held that
“We do not find any merit in the contentions urged by the petitioner in the writ petition.
The disability which is imposed under Section 62(5) of the Representation of the People
Act is equally applicable to all persons similarly situate mentioned therein and they are
even prevented from contesting the election or offering themselves as candidates for
such election. The provision is reasonable and in public interest to maintain purity in
electing peoples' representatives and there is no arbitrariness or discrimination
involved. Rule is discharged and the writ Petition is dismissed.”12
14. The disability which is imposed under Section 62 (5) of the Representation of the People
Act is equally applicable to all persons similarly situate mentioned therein and they are
7
Mahendra Kumar Shastri v. Union of India, AIR 1983 SCC 299.
8
9
S. Radhakrishnan v. Union of India, AIRONLINE 1999 SC 550.
10
S. Radhakrishnan v. Union of India, AIRONLINE 1999 SC 550.
11
12

even prevented from contesting the election or offering themselves as candidates for
such election. The provision is reasonable and in public interest to maintain purity in
electing peoples’ representatives and there is no arbitrariness or discrimination
involved
15. Restriction on voting of a person in prison result automatically from his confinement
as a logical consequence of imprisonment. A person not subjected to such a restriction
is free to vote or not to vote depending on whether he wants to go to vote or not; even
he may choose not to go and cast his vote. In view of the restriction on movement of a
prisoner, he cannot claim that he should be provided the facility to go and vote.
16. In Anukul Chandra Pradhan v. union of India13, a three Judge Bench of this Court
speaking through Verma, CJI (as His Lordship then was) examined the ambit and scope
of Section 62(5) of the Representation of the People Act, 1950 and after observing that
criminalization of politics is the bane of society and negation of democracy, rejected
the challenge to the validity of the said Section.
17. The object of Section 62(5) is to prevent criminalization of politics and maintain probity
in elections and that any provision which furthers that aim and promotes the object has
to be welcomed, as sub-serving a great constitutional purpose.14
18. The view expressed by the three Judge Bench in Anukul Chandra Pradhan's case (supra)
and the court in Mahendra Kumar vs Union of India was not persuaded to take a
different view. the effect of sub-section (5) of Section 62 of the Act is that any person
who is confined in prison while serving a sentence of imprisonment on his conviction
for any offence or is under lawful confinement in a prison or in a police custody for any
reason is not entitled to vote in an election, but this restriction does not apply to a person
subjected to any kind of preventive detention.
19. In Manohar Lal Sharma vs Union of India15 after reiterating the ratio in the matter
of Anukul Chandra Pradhan (Advocate, Supreme Court) (Supra), it was observed that
the right to elect, fundamental though it is to democracy, is, anomalously enough,
neither a fundamental right nor a common law right. It is pure and simple, a statutory
right, regard being had to the Representation of the People Act, 1951.
20. In Aditya Prasanna Bhattacharya v. Union of India16 CJI DY Chandrachud remarked
13
14
15
Manohar Lal Sharma v. Union of India, (2014) 141 DRJ 157.
16
Aditya Prasanna Bhattacharya v. Union of India, Writ Petition(s)(Civil) No(s). 462/2019.

"In view of these judgements, why should we reopen the issue?" and reiterated that the
constitutional validity of the provisions of Section 62(5) of the Representation of the
People Act 1951 has been upheld by a two Judge Bench of this Court in Mahendra
Kumar Shastri Vs Union of India and later by a three Judge Bench of this Court in
Anukul Chandra Pradhan, Advocate Supreme Court Vs Union of India.
21. It is humbly submitted before this hon’ble court that Section 62(5)17 of The
Representation of People Act 195118 is constitutionally valid. The constitutionality of
sub section 5 of Section 62 stands in its alignment with the fundamental values of our
democracy. It preserves the integrity of the electoral system and ensure that the spirit
of fair representation prevails. The provision aims to strike a balance between the rights
of citizens and the need for a robust electoral process and we thus request the petition
be disposed of accordingly.
1.2 Restrictions under Section 62(5) of the Representation of the People Act 1951 is
not violative of any fundamental rights guaranteed by constitution.
22. Article 1419 permits reasonable classification which has a rational nexus with the object
of classification. The question is whether the classification made by sub-section 5
of Section 62 is reasonable or not There are provisions made in the election law which
exclude persons with criminal background of the kind specified therein, from the
election scene as candidates and voters. The object is to prevent criminalization of
politics and maintain probity in elections.20
23. Any provision enacted with a view to promote this object must be welcome and upheld
as subsisting the constitutional purpose. The elbow room available to the legislature in
classification depends on the context and the object for enactment of the provision.21
24. The existing conditions in which the law has to be applied cannot be ignored in
adjudging its validity because it is relatable to the object sought to be achieved by the
legislation. Criminalization of politics is the bane of society and negation a of
democracy. It is subversive of free and fair elections which is a basic feature of the
17
18
The Representation of The People Act,1951, No. 43, Acts of Parliament, 1951 (India).
19
INDIA CONST. art. 14.
20
21

Constitution.
25. Hon'ble Supreme Court decision which upheld The Patna High Court decision Randhir
Kumar vs The Hon’ble Chancellor of Universities22 which held that “A right to vote is
a statutory right, the Law gives it and the Law takes it away… The Court has no
hesitation in interpreting the Constitution and the Laws framed under it, read together,
that persons in lawful custody of the Police also will not be voters, in which case, they
will neither be electors…It is privilege to vote, which privilege may be taken away. In
that case, the elector would not be qualified, even if his name is on electoral rolls. The
name is not struck off, but the qualification to be an elector and the privilege to vote
when in lawful custody of the police is taken away.”23
26. In People's Union of Civil liberties vs Union of India24 The court invalidated the law in
so far as it did not comply with the court decision reiterating that voter has a
fundamental right under article 1925 to know the antecedents of the candidate. The court
clarified that the right to vote is not a fundamental right. It is basically a statutory or at
the most a constitutional right
27. In The United Kingdom , in a Court judgment26 dated 4 April 2001, Lord Justice
Kennedy noted that section 327 had a long history and cited the Secretary of State’s
reasons, given in the proceedings, for maintaining the current policy: “By committing
offences which by themselves or taken with any aggravating circumstances including
the offender’s character and previous criminal record require a custodial sentence, such
prisoners have forfeited the right to have a say in the way the country is governed for
that period. There is more than one element to punishment than forcible detention.
Removal from society means removal from the privileges of society, amongst which is
the right to vote for one’s representative.”
28. It is humbly submitted before this hon’ble court that restrictions imposed under sub
section 5 of section 62 of The Representation of The People Act 1951 is not violative
of fundamental rights. Thus, A provision made in the election law to promote the object
of fight and fair elections and facilitate maintenance of law and order which are the
essence of democracy must, therefore, be so viewed. More elbow room to the
22
Randhir Kumar v. The Hon’ble Chancellor of Universities, 2023 SCC OnLine Pat 2830.
23
Randhir Kumar v. The Hon’ble Chancellor of Universities, 2023 SCC OnLine Pat 2830.
24
People's Union of Civil liberties v. Union of India, AIR 2003 SC 2363.
25
26
Hirst v. United Kingdom, (No. 2) (2005).
27
The Representation of the People Act, 1983, § 3, No. c.2, Acts of Parliament, 1983 (United Kingdom).

legislature for classification has to be available to achieve the professed object.
1.3 Right to vote is subject to the limitation imposed by the statute which can be
exercised only in the manner provided by the statute.
29. The nature of the right to elect, the right to be elected and the right to dispute an election
and the scheme of the constitutional and statutory provisions A right to elect,
fundamental though it is to democracy, is, anomalously neither a fundamental right nor
a Common Law Right.
30. It is a statutory right. So is the right to be elected, and the right to dispute an election.
Outside of statute, there is no right to elect, no right to be elected, and no right to dispute
an election. Statutory creations they are subject to statutory limitation.
31. An Election petition is not an action at Common Law, nor in equity. It is a statutory
proceeding to which neither the Common Law nor the principles of Equity apply but
only those rules which the statute makes and applies. It is a special jurisdiction, and a
special jurisdiction has always to be exercised in accordance with the statute creating
it. Concepts familiar to Common Law and Equity must remain strangers to Election
Law unless statutorily embodied.
32. A Court has no right to resort to them on considerations of alleged policy because policy
in such matters, as those, relating to the trial of election disputes, is what the statute lays
down. In the trial of election disputes, Court is put in a strait jacket.
33. A person who is in prison as a result of his own conduct and is, therefore, deprived of
his liberty during the period of his imprisonment cannot claim equal freedom of
movement, speech and expression with the others who are not in prison. The
classification of persons in and out of prison separately is reasonable. Restrictions on
voting of a person in prison results automatically from his confinement as a logical
consequence of imprisonment
34. A person not subjected to such a restriction is free to vote or not to vote depending on
whether he wants to go to vote or not; even he may choose not to go and cast his vote.
In view of the restriction on movement of a prisoner, he cannot claim that he should be
provided the facility to go and vote. Moreover, if the object is to keep persons with
criminal background away from the election scene, a provision imposing a restriction
on a prisoner to vote cannot be called unreasonable.

35. In People's Union of Civil liberties vs Union of India28, the court invalidated the law in
so far as it did not comply with the court decision reiterating that voter has a
fundamental right under article 1929 to know the antecedents of the candidate. The court
clarified that the right to vote is not a fundamental right. It is basically a statutory or at
the most a constitutional right
36. In Kuldip Nayar v. Union of India30, The court held that a right to elect, fundamental
though it is to democracy, is neither a fundamental right nor a common law right, but
pure and simple, a statutory right. It may also be mentioned that the nature of right to
vote has been held to be a statutory right and not a common law right because of which
it depends on the nature of right conferred by the statute.
37. In N.P. Ponnuswami v. Returning Officer, Namakkal Constituency and Other 31, the
Constitution Bench held "The right to vote or stand as a candidate for election is not a
civil right but is a creature of statute or special law and must be subject to the limitations
imposed by it."
38. In relation to these rights have been explained by the Court in N.P. Ponnuswami v.
Returning Officer, Namakkal Constituency32 and Jagan Nath v. Jaswant Singh.33 We
proceed to state what we have gleaned from what has been said, so much as necessary
for this case.
39. A Division Bench of this Court in a judgment reported in Manohar Lal Sharma vs.
Union of India34 in paragraph 25 and 26 held as under: -
40. “25. It is trite that right to vote' is not a fundamental right or constitutional right, but is
only a statutory right. The Legislature can determine the terms on which the right to
vote is enjoyed by the people of India. Section 62(5) of the RP Act of 1951 explicitly
states, ―No person shall vote at any election, if he is confined in a prison ... or is in the
lawful custody of the police.35
41. 26.The right to vote is subject to the limitations imposed by the statute, which can be
exercised only in the manner provided by the statute and that challenge to any provision
in the statute prescribing the nature of right to elect cannot be made with reference to a
28
People's Union of Civil liberties v. Union of India, AIR 2003 SC 2363.
29
30
Kuldip Nayar v. Union of India, AIR 2006 SC.
31
32
33
Jagan Nath v. Jaswant Singh, [1954] S.C.R. 892.
34
35

fundamental right in the Constitution. The very basis of challenge to the validity of sub-
Section 5 of Section 62 of the RP Act of 1951 was, therefore, held to be not available.”36
42. The constitutional validity of said Section was upheld by the Supreme Court in Ankul
Chandra Pradhan, Advocate, Supreme Court v. Union of India by holding as under:
43. “9. It may also be mentioned that the nature of right to vote has been held to be a
statutory right and not a common law right because of which it depends on the nature
of right conferred by the statute”.37
44. In Manohar Lal Sharma vs Union of India38 after reiterating the ratio in the matter
of Anukul Chandra Pradhan (Advocate, Supreme Court) (Supra), it was observed that,
the right to elect, fundamental though it is to democracy, is, anomalously enough,
right, regard being had to the Representation of the People Act, 1951
45. In view of the aforesaid decision of Hon’ble Supreme Court, right to vote is neither a
fundamental right nor a constitutional right. Right to vote is not one of the common law
rights but it is a right conferred by a statute. The right to vote is subject to limitation
imposed by the statute.
46. The right to vote is the statutory right, the law gives it and the law can take it away.
Thus, the classification has already been held as valid classification by the Hon’ble
Supreme Court between persons who are out of jail and persons who are in jail. They
are class by themselves.39
47. The right to elect, fundamental though it is to democracy, is, anomalously enough,
right. So is the right to be elected. So is the right to dispute an election. Outside of
statute, there is no right to elect, no right to be elected and no right to dispute an election.
Statutory creations they are, and therefore, subject to statutory limitation.40
48. Thus, it is humbly submitted before the hon’ble court that in view of the settled law on
the point, in must be held that the right to vote is subject to the limitation imposed by
the statute which can be exercised only in the manner provided by the statute; and that
the challenge to any provision in the statute prescribing the nature of right to elect
cannot be made with reference to a fundamental right in the Constitution. The very
36
37
38
39
40

basis of challenge to the validity of sub-section 5 of Section 62 of the Act is, therefore,
not available.
ISSUE 2: WHETHER THE DENIAL OF THE CONJUGAL VISITATION RIGHTS

TO MS. ABY’S INCARCERATED HUSBAND FOR THE SAKE OF PROGENY IS
49. It is humbly submitted before the Supreme Court of Zendia that conjugal visitation
rights to an incarcerated spouse for progeny are not included within the meaning of
fundamental rights provided by the Constitution of Zendia. The denial of the right to
procreate to prisoners is thus reasonable and just because, (i) No statutory provisions
provide for conjugal rights to the prisoners, and (ii) The right to procreate while being
incarcerated is a ‘Refutable Right’.
2.1 No statutory provisions provide for conjugal rights to the prisoners
50. The demand of the petitioner for conjugal visitation rights to her incarcerated and a
death row convicted husband has no statutory backing of law. The Prisons Act, 1894
contains no provision to permit ‘conjugal visitation’, moreover Section 2741 rather
mandates proper segregation of male and female prisoners.42 In India, there is no Statue
or Rulebook which discusses or confers conjugal rights to prisoners. There is no
mechanism or scheme for allowing conjugal visits in jails.43
2.1.1 Graveness of the matter
51. Although Courts are without power to supervise prison administration or to interfere
with the ordinary prison rules or regulation44, the court held that the court held that the
penological interest of the State ought to permit the creation of facilities for the exercise
of right to procreation during incarceration as there is no inherent conflict between the
right to procreate and incarceration. However, the same is subject to reasonable
41
Prisons Act, 1894, § 27, No. 9, Acts of Parliament, 1894 (India).
42
Jasvir Singh v. State of Punjab, 2014 SCC OnLine P&H 22479.
43
Dr. Shruti Goyal, CONJUGAL RIGHTS OF PRISONERS, Bharati Law Review, 64 (2018), chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://docs.manupatra.in/newsline/articles/Upload/22A58DF8
EA77-472B-B0B5-F06ECDF5EB61._Goyal_Dr._Asst._Prof._57-73_Family.pdf.
44
Banning v. Looney, 213 F.2d 771, 771 (10th Cir.).

restrictions, social order and security concerns. The court was conscious of the
intricacies involved and held that exercise of such rights is to be regulated by procedure
established by law and is the sole prerogative of the State. The Court left it to the state
to frame policy for reasonable classification as the right is not an absolute right and is
subject to the penological interests of the State. However, in this case, the claim of the
petitioners was denied mainly on the ground that the offence committed by them was
grave in nature. 45
52. Similarly, Mr. Y has committed a grave crime of murder and has been sentenced to
death. Therefore, no fundamental ‘right to life’46 and right to procreation is being
violated by the denial of conjugal rights to the petitioner.
2.2 The Right to Procreate While Being Incarcerated Is a Refutable Right
53. The desire to procreate may not be considered as an irrefutable right, for example,
considering that the prisoner already has children or is not in the advanced years of age.
The right to procreation is not absolute and necessitates a contextual examination. By
taking into account factors such as the prisoner's parental status and age, a fair and just
approach can be adopted to preserve the delicate equilibrium between individual rights
and broader societal considerations.47 Also, the inevitable absence of one parent,
including that parent’s financial and other support, for a long period has adverse
consequences for the child and for society as a whole.48
54. In only a few countries are provisions for marital contacts extended equally to all
categories of prisoners. The limitation may be because of the unreliability or
dangerousness of the criminal; or marital contacts may have some connotation of a
privilege to be granted only to cooperative and conforming prisoners. In either case, the
practice of home leaves or of family residence in a penal colony is not carried out
haphazardly but tends to be integrated into the total prison regime.. ..it is worth noting
45
46
INDIA CONST. art 21.
47
Kundan Singh v. State (NCT of Delhi), 2023 SCC OnLine Del 8364.
48
R.P. Upadhyay v. State of Andhra Pradesh and Others, AIR 2006 SC 1946.

that in general the countries do not favour private or conjugal visits within the prison,
with the exception of Mexico.”49
2.2.1 Restriction by Jail Authorities Comes under Exceptions to Article 8 of ECHR
55. Whilst noting with approval the reform movements in several European countries to
improve prison conditions by facilitating conjugal visits, the European Commission of
Human Rights considers that the refusal of such visits may for the present time be
regarded as justified for the prevention of disorder and crime within the meaning of the
second paragraph of Article 8 of the Convention.50 Article 8 of European Convention51
states that everyone has the right to respect for his private and family life, his home and
his correspondence. There shall be no interference by a public authority with the
exercise of this right except such as is in accordance with the law and is necessary in a
democratic society in the interests of national security, public safety or the economic
well-being of the country, for the prevention of disorder or crime, for the protection of
health or morals, or for the protection of the rights and freedoms of others.
56. From the conjoint reading of the Punjab Good Conduct Prisoners (Temporary Release)
Act, 1962 Act, Rules and the Punjab Government policy, it is seen that these benefits
are extendable to all the prisoners, subject to their good behavior while in jail, except
those involved in heinous offences or whose temporary release is likely to endanger
State security or public peace and order.52 The convict in the present case has been
convicted and sentenced to death. Therefore, the crime being of a grave nature, it is
within the lawful domain to curb the petitioner’s right to procreation.
57. The reaction of penal administrators in this country to conjugal visitation has been
largely been negative.53 A second objection to the extension of the right of privacy to
prisoners is that prisons are not private places but public institutions, and that by
49
Ruth Shonle Cavan, Marital Relationships of Prisoners in Twenty-Eight Countries, 49 JCLC 133, (1958),
chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://scholarlycommons.law.northwestern.edu/cgi/viewcontent
.cgi?httpsredir=1&article=4692&context=jclc.
50
Aliev v. Ukraine, CCPR/C/78/D/781/1997; E.L.H. v. The United Kingdom, No. 32094/96.
51
European Convention on Human Rights, art. 8, Council of Europe, 1950.
52
REPRODUCTIVERIGHTS.ORG, https://reproductiverights.org/wp-
content/uploads/2020/12/SecuringReproductiveJusticeIndia-Chpt08.pdf (last visited Jan. 16, 2024).
53
Conjugal Visitation Rights and the Appropriate Standard of Judicial Review for Prison Regulations, 73 Mich.
L. Rev., (1974) chrome-
extension://efaidnbmnnnibpcajpcglclefindmkaj/https://repository.law.umich.edu/cgi/viewcontent.cgi?article=42
69&context=mlr.

committing a crime that justifies incarceration the inmate has waived his right to marital
privacy.54
2.2.2 Against Purpose of Imprisonment, Social Fabric and Order
58. The Supreme Court of Judicature in United Kingdom in a case, denied the claim of a
prisoner for artificial insemination. The Court held that the refusal to permit the
appellant the facilities to provide semen for artificial insemination of his wife was
neither in breach of the Convention nor unlawful or irrational. The Court culled out
three reasons for sustenance of the policy that restricts the provision of facilities for
artificial insemination. Firstly, it is an explicit consequence of incarceration that
prisoners should not have the opportunity to beget children while serving their
sentences except when they are allowed to take temporary leave; secondly, there is
likelihood of a serious and justified public concern if prisoners continue to have the
opportunity to conceive children while serving sentences; and thirdly, there are
disadvantages of single parent families.55
59. In a recent case,56 a prisoner, William Gerber, who was serving life without parole,
sought permission from the California Department of Corrections to provide, at his own
expense, a sperm sample to impregnate his wife. A deeply divided en banc Ninth
Circuit, over vigorous dissent, held that the right to procreate was inconsistent with
imprisonment and that Mr. Gerber had no interest in inseminating his wife because he
would never be able to leave prison to assist in raising the child. In the present case, the
principle ‘right to procreate is inconsistent with imprisonment’ shall be applied and
conjugal rights should be refused considering also the fact that the convicted person
would never be able to the leave prison to assist in raising the child.
60. In Jasvir Singh v. State of Punjab57 the court held that owing to the neglected and
limited infrastructure, causing overcrowding, lack of specialized services and above all
the prevailing social norms and the societal expectations, it may not be conducive to
create space for conjugal visits within the existing prisons. The court also reasoned that
(i) the society, its fabric and pragmatic approach does not allow restitution of conjugal
rights in the case at hand(ii) the circumstances which led to the petitioners’
incarceration are far grave in nature and different from those where one of the spouse
54
Lyons v. Gilligan, 382 F. Supp. 198, 200 (N.D. Ohio 1974).
55
R v. Secretary of State for Home Department, [2001] EWCA Civ 472.
56
Gerber v. Hickman, 291 E3d 617 (9th Cir. 2002).
57

was totally innocent and possessory of all human rights without any curtailment unlike
the instant case where both of them are convicts and undergoing death sentence and life
conviction, respectively; (iii) even the most liberal view taken by some of the European
or American Courts58 would not justify the claim put forth by the petitioners; and (iv)
the existing infrastructure and overall environment do not support emergent measures.59
Therefore the conjugal rights should be refused in this case.
2.3 Environment of the Jail will be disturbed
61. In the 2012 Andhra Pradesh High Court case of Ms. G. Bhargavi, President M/s. Gareeb
Guide (Voluntary Organisation) v. State of Andhra Pradesh60 the court observed the
following: firstly, if conjugal visits are allowed keeping in view good behavior of the
prisoners, then chances of the environment getting disturbed cannot be ruled out as it
will have an adverse impact on the other inmates of the jail who have not been selected
and extended such benefit. Secondly, Chapter-IV of Andhra Pradesh Prison Rules, 1979
provide for the release of prisoners on furlough/parole and during this temporary release
the prisoners can lead family life with their spouses. Thus, High Court denied any
facilities of conjugal visits to jails. It also pointed out that such an issue of allowing
conjugal visits in jails is a policy matter which falls within the exclusive domain of the
state.
62. Therefore, it is humbly submitted that the petitioner, Ms. Aby cannot claim conjugal
visitation rights to her incarcerated husband. The ‘right to procreation’ is a refutable
right. Moreover, there is no statutory and legal provisions for the allowance of such
conjugal visitation rights. The crime committed by Mr. Y being of a grave nature is
thus an impediment in granting the conjugal rights to the couple.
ISSUE 3: WHETHER THE PETITION FILED BY THE ZENDIA PEOPLE’S

FORUM (ZPF) IN THE SUPREME COURT FOR THE TESTING OF ALL THE
PRISONERS FOR HIV IN ZENDIA IS JUSTIFIED OR NOT?
63. It is humbly submitted before this hon’ble court that petition filed by the Zendia People’s
Forum (ZPF) in the supreme court for the testing of all the prisoners for HIV in zendia is not
58
Gerber v. Hickman, 291 E3d 617 (9th Cir. 2002).
59
60
G. Bhargavi v. State Of Andhra Pradesh and Others 2012 SCC OnLine AP 635.

justified because : (i) The action demanded is not justified under Article 21.
3.1 It is not justified under constitution of Zendia
64. This petition cannot be allowed and justified in law, since it demands compulsory
testing of prisoners without consent and has the potential to breach the privacy of
prisoners affected with HIV. Confidentiality and consent are two prime factors, which
must be kept in mind in cases involving medical tests, and in the present scenario, the
breach of both the above notions, shall lead to a breach of right to dignity and privacy,
under Art. 21 of the Constitution of Zendia. Moreover, the said measure aims at
segregating and discriminating prisoners on the basis of their health and social status,
which also stands against the right to equality principle enshrined under Art. 14 of the
Constitution of Zendia.
3.1.1 The action demanded is not justified under Art. 21
65. The landmark judgement of KS Puttaswamy61, has held right to privacy to be an

intrinsic part of Art. 21, which stems out from the basic structure of the Constitution of
Zendia. Due to the special conditions imposed by incarceration, in particular that they
are coercive environments that constrain the freedom and privacy of individuals, there
have long been concerns around the legal and ethical implications of HIV testing within
penal settings.62
66. In the case of State of AP v. Challa Ramkrishna Reddy63 , it was held that a prisoner is
entitled to all his/her fundamental rights unless his/her liberty has been constitutionally
curtailed. The Supreme Court has emphasized that a prisoner, whether a convict, under-
trial or detenu, does not cease to be a human being and, while lodged in jail, he/she
enjoys all his/her fundamental rights guaranteed by the Constitution of India including
the right to life guaranteed by the Constitution of India.
67. The Supreme Court has time and again upheld patients right to privacy and duty of the
physicians to maintain patients confidentiality, except in cases involving public
61
KS Puttaswamy v. Union of India, (2017) 10 SCC 1.
62
M. Gagnon, J.D. Jacob & L. Cormier, Total control: a critical analysis of mandatory HIV testing in U.S. prisons,
9 J. FORENSIC NURS . 154 (2013).
63
State of AP v. Challa Ramkrishna Reddy, (2000) 5 SCC 712.

interest.64 It has been lightly noted that ‘consent’65 and ‘confidentiality’66 are of prime
importance when for one’s dignity and privacy. Section 5 of The Human
Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and
Control) Act, 201767 emphasises on the need of the informed consent during the
administration of HIV test and section 868 on the importance of non-disclosure of the
HIV status of a person. The Selvi69 judgment has rightly upheld involuntary
administration of tests to be a restraint on personal liberty under Art. 21, specially in
cases where force is seen as a unreasonable measure.
68. In cases of clash of interest, the restriction on Art. 21 should be based on the principals
of ‘fairness, non-arbitrariness and reasonableness’.70 Voluntary consent in a medical
test is an important feature of dignity71 and that the same results of protecting the un
effected prisoners from HIV can be achieved through reasonable measures including
awareness drives, educational programmes and stricter implementation of laws. As
respect for patient autonomy, confidentiality and voluntary consent are fundamental
aspects of healthcare and human rights, many national and international organizations
oppose mandatory or compulsory testing of individuals in correctional settings,
including the World Health Organization and UNAIDS.72
69. The court has previously held that every person should be availed of medical treatment
as it is a basic human right. The court also held that there should be proper mental and
physical healthcare of prisoners suffering from any disease by jail authorities.73 The
present findings revealed that only a few HIV prevention, care and treatment
interventions have been implemented in prisons in India.74
70. Moreover, additional violations of human rights flow from the fact of segregation and
compound the harsh consequences of this policy for HIV-positive prisoners:
64
Mr X v. Hospital Z, (1998) 8 SCC 296.
65
Bhondar v. Emperor, AIR 1931 CAL 601.
66
Mr X v. Hospital Z, (1998) 8 SCC 296.
67
The Human Immunodeficiency Virus and Acquired Immune Deficiency Syndrome (Prevention and Control)
Act, 2017, § 5, No. 16, Acts of Parliament, 2017 (India).
68
69
Selvi v. State of Karnataka, (2010) 7 SCC 263.
70
Selvi v. State of Karnataka, (2010) 7 SCC 263.
71
Samira Kohli v. Prabha Manchanda Dr. & ANR, 1 (2008) CPJ 56 (SC).
72
Seal DW, Eldridge GD, Zack B, Sosman J., HIV Testing and Treatment with Correctional Populations: People,
Not Prisoners, 21 J. HEALTH CARE POOR & UNDERSERVED 977 (2010).
73
Rasikbhai Ramsingh Rana And Anr v. State Of Gujarat And Ors, 1999 CRILJ 1975.
74
NATIONAL L IBRARY OF M EDICINE , https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3102457/ (last visited
Jan. 22, 2024).

involuntary disclosure of HIV status to family, staff and other prisoners; loss of liberty
by assignment to higher security prisons; denial of work, program and re-entry
opportunities; and policies that promote, rather than combat, fear, prejudice and even
violence against persons living with HIV.75
3.1.2 The action demanded is not justified under Art. 14
71. It is humbly submitted that, the basic spirit of our constitution is to provide each and
every person of the nation equal opportunity to grow as a human being, irrespective of
race, caste, religion, and social status. To foster social reforms it is necessary to ensure
that each and every citizen of this country is able to exploit his/her potential to the
maximum.
72. In keeping with this, the concept of equality in Article 14 so also the meaning of the
words "life" "liberty" and "law" in Article 21 have been considerably enlarged by
judicial decisions. Anything which is not "reasonable, just and fair" is not treated to be
equal and is therefore, violative of Article 14. And the common thread which passes
through all the pronouncements of the Supreme Court of India is that Article 21
guarantees enjoyment of life by all citizens of this country with dignity, viewing this
human right in terms of human development.76
73. In I.B. v Greece, the ECHR found that the applicant had been fired by his employer
because of pressure from other employees who were concerned about the applicant’s
HIV status, and held that the applicant had been discriminated against on the basis of
his health, in violation of Article 14 taken together with Article 8 ECHR.
74. Section 3(k) of HIV/AIDS act77 does not allow for discrimination on the basis of HIV
status of an individual and the subsequent isolation and segregation of the protected
persons affected with HIV. And that, where there is no substantial risk of transmission
after reasonable accommodations have been made, s/he cannot be discriminated
against.78
75. Segregation policies reflect outdated approaches to HIV that no longer have any
rational basis in science or public policy. In the early days of the HIV/AIDS epidemic,
75
HUMAN R IGHTS W ATCH, https://www.hrw.org/report/2010/04/14/sentenced-stigma/segregation-hiv-positive-
prisoners-alabama-and-south-carolina (last visited Jan. 22, 2024).
76
National Legal Service Authority v. Union of India, 2014 SCC OnLine SC 328.
77
78
School Board of Nassau County v. Arline, 480 US 273 (1987).

fear and ignorance led to severely restrictive public policies, including quarantine and
segregation in prisons. In 1985, for example, 46 of 51 state and federal prison systems
segregated HIV-positive prisoners. But, by 2005, that number was down to the three
states.79
76. According to the World Health Organization (WHO), the United Nations Office on
Drugs and Crime (UNODC), and UNAIDS,80 a comprehensive set of interventions in
prisons should include:
• information and education, particularly through peers
• provision of condoms and other measures to reduce sexual transmission
• needle and syringe programs
• drug dependence treatment, in particular opioid substitution therapy
• voluntary counseling and HIV testing.
77. Therefore, it is submitted that segregation of HIV patients is not based on science and
public policy as it has grave consequences on their mental and social wellbeing of the
affected person since it would lead to stigmatisation and inequality based on
unreasonable grounds.
79
HUMAN R IGHTS W ATCH, https://www.hrw.org/report/2010/04/14/sentenced-stigma/segregation-hiv-positive-
prisoners-alabama-and-south-carolina (last visited Jan. 22, 2024).
80
Ralf Jürgens & World Health Organization, Interventions to Address HIV in Prisons: HIV Care, Treatment and
Support, (2007).

PRAYER
Wherefore, in the light of the facts of the case, issues raised, arguments advanced and
authorities cited, it is most humbly and respectfully requested that the Hon'ble Supreme Court
be pleased to declare that:
1. Sub section 5 of Section 62 of The Representation of The People Act 1951 is

constitutionally valid.
2. Denial of the conjugal visitation rights to Ms. Aby’s husband for the sake of
progeny is not violative of their fundamental rights.
3. The petition filed for the testing of all the prisoners for HIV and segregation in
Zendia is not justified.
AND/OR
PASS ANY OTHER ORDER AS IT DEEMS FIT IN THE INTEREST OF EQUITY, JUSTICE AND
GOOD CONSCIENCE.
For this act of kindness, the respondent faction shall be duty bound forever.
-Counsel on behalf of
Respondents.

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1ST NHRC - SLS NAGPUR MOOT COURT COMPETITION

Team Code: TC-51R

NHRC – SLS NAGPUR NATIONAL MOOT COURT COMPETITION 2024

WRIT PETITION FILED UNDER ARTICLE 32 OF THE

MS. ABY ……………………………………………………………………………PETITONER

ZENDIA PEOPLE’S FORUM …………………….…………….……………………PETITIONER

ON SUBMISSION TO THE SUPREME COURT OF ZENDIA

WRITTEN SUBMISSION ON BEHALF OF THE RESPONDENTS

Memorandum for Respondent 1

LIST OF ABBREVATIONS ..................................................................................................... 7

STATEMENT OF FACTS ........................................................................................................ 9

ISSUES RAISED ..................................................................................................................... 11

SUMMARY OF ARGUMENTS ............................................................................................. 12

ARGUMENTS ADVANCED ................................................................................................. 14

ISSUE 1: WHETHER THE BLANKET BAN IMPOSED ON THE VOTING RIGHTS OF

ISSUE 2: WHETHER THE DENIAL OF THE CONJUGAL VISITATION RIGHTS TO

2.1.1 Graveness of the matter ........................................................................................... 23

2.2.2 Against Purpose of Imprisonment, Social Fabric and Order ................................... 26

2.3.1 Environment of the Jail will be disturbed ................................................................ 27

ISSUE 3: WHETHER THE PETITION FILED BY THE ZENDIA PEOPLE’S FORUM

Memorandum for Respondent 2

HIV IN ZENDIA IS JUSTIFIED OR NOT? ....................................................................... 27

3.1 It is not justified under constitution of Zendia ........................................................... 28

3.1.1 The action demanded is not justified under Art. 21 ................................................ 28

3.1.2 The action demanded is not justified under Art. 14 ................................................ 30

Memorandum for Respondent 3

Memorandum for Respondent 4

INDIA CONST. art. 19. ..................................................................................................... 18, 20

Memorandum for Respondent 5

content/uploads/2020/12/SecuringReproductiveJusticeIndia-Chpt08.pdf (last visited Jan.

Memorandum for Respondent 6

Memorandum for Respondent 7

Memorandum for Respondent 8

Introduction: Zendia, a quasi-federal democracy with a diverse population, is a major global

Memorandum for Respondent 9

Memorandum for Respondent 10

Memorandum for Respondent 11

ISSUE 1: WHETHER THE BLANKET BAN IMPOSED ON THE VOTING RIGHTS

ISSUE 2: WHETHER THE DENIAL OF THE CONJUGAL VISITATION RIGHTS TO

ISSUE 3: WHETHER THE PETITION FILED BY THE ZENDIA PEOPLE’S FORUM

Memorandum for Respondent 12

FOR HIV IN ZENDIA IS JUSTIFIED OR NOT?

Memorandum for Respondent 13

ISSUE 1: WHETHER THE BLANKET BAN IMPOSED ON THE VOTING RIGHTS

1. It is humbly submitted that sub section 5 of section 62 of The Representation of

Memorandum for Respondent 14

Memorandum for Respondent 15

Memorandum for Respondent 16

Memorandum for Respondent 17

Memorandum for Respondent 18

Memorandum for Respondent 19

legislature for classification has to be available to achieve the professed object.

Memorandum for Respondent 20

Memorandum for Respondent 21

Memorandum for Respondent 22

ISSUE 2: WHETHER THE DENIAL OF THE CONJUGAL VISITATION RIGHTS

2.1 No statutory provisions provide for conjugal rights to the prisoners

Memorandum for Respondent 23

2.2 The Right to Procreate While Being Incarcerated Is a Refutable Right

Memorandum for Respondent 24

2.2.1 Restriction by Jail Authorities Comes under Exceptions to Article 8 of ECHR

Memorandum for Respondent 25

Memorandum for Respondent 26