Beruflich Dokumente
Kultur Dokumente
IN THE MATTER OF :
VERSUS
TABLE OF CONTENTS
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LIST OF ABBREVATIONS
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INDEX OF AUTHORITIES
I. CONSTITUTION /STATUTES/ RULES REFERRED
lexisnexis.com
manupatra.com
scconline.com
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STATEMENT OF JURISDICTION
The petitioner has approached this Hon’ble Supreme Court under Article 1361 of the
Constitution of India, 1950, to grant special leave to appeal against the impugned order of the
Session Court and Central Information Commission.
The present memorandum sets forth the facts, contentions and arguments in the present case.
1
136. Special leave to appeal by the Supreme Court
(1) Notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to
appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by
any court or tribunal in the territory of India
(2) Nothing in clause (1) shall apply to any judgment, determination, and sentence or order passed or made by
any court or tribunal constituted by or under any law relating to the Armed Forces.
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STATEMENT OF FACTS
Background-:
After independence India have two aims, good governance and egalitarian society.
The Right to Information Act was passed in 2005 to bring about transparency and
accountability in governance and to eradicate corruption. The Whistle Blowers
Protection Act,2011 has received the ascent of President but the Act awaits its
enforcement.
The glorious history of India contains some sad chapters of atrocities against the
deprived section of the society. Therefore, the Constitution of India guarantees
equality. Moreover, to prohibit derogatory practices against them, the Parliament
passed the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
1989 which was amended in 2015.
The Proposition
Hariya belongs to the Scheduled Castes (SC) and he has to live in a slum-area away
from village due to widespread caste-based discrimination. Hariya works as a servant
in the farm house of Rama Ram. Rama Rama holds chief post in the office of Central
Public Works Department (CPWD).
In July 2016, the Government of India announces a scheme for rehabilitating the
people belonging to SC and ST for providing them free houses. Under the scheme, the
responsibility to construct the houses is assigned to the office of CPWD.The work
didn’t start till December 2016, then people belonging to SC and ST assemble
together and go to CPWD office to know about the delay in the implantation of the
scheme. Rama Ram tells them that after inviting tender, work-order has been issued.
However,no construction starts till July 2017. Moreover, the office of CPWD does not
pay wages to MNAREGA workers from January 2017onwards. Then some workers
approach the office to demand wages but they were told that the office is not in
receipt of funds from the central government so they are unable to pay.
In July 2017, Hariya submits an RTI application in the office of CPWD on 05 July
2017. In the application following information is asked for:
(a)Amount of funds transferred to the office of CPWD by the Government of India for
various purposes from 1 January 2016 onwards and date of transfer.
(b)Certified photocopy of tender-notice.
(c)Certified photocopy of work-order issued
On 10th August 2017 Hariya files an appeal in the office of CPWD under
Section19(1) of the RTI Act, 2005 as he does not receive information.Next day Rama
Ram calls Hariya before the Panchayat, beats him, garlands him with foot-wears, asks
him not to enter any temple in the village and threatens him to withdraw the appeal.
At that time, four other persons belonging to Hariya’s caste are present there, but they
are unable to agitate.
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Hariya files a complaint directly before the Sessions court which the court accepts and
a case is initiated against Rama Ram under Section3(1)(d),3(1)(e),3(1) (za)(c) of the
POA Act; and Section 319 of the Indian Penal Code. The defense pleads before the
court that Rama Ram does not know whether Hariya belongs to Scheduled Cates, so
in the light of Sec.8(c) of the POA act, the proceeding should not be carried under the
POA Act. The Court agrees with the plea of defense.
On the other hand, Hariya does not withdraw the appeal and files second appeal
before the CIC on 15 September 2017, under section 19(3) of the RTI Act, 2005.
Rama Ram kidnaps Hariya and kills him and throws his dead-body outside the
village. Rama Ram raises the defense of Rule 12 of the RTI Rules,2017 which have
come in force on 15 May,2017. The rule states that on the death of appellant, the
appeal shall be deemed to have been withdrawn and CIC accepts the plea and rejects
the appeal.
Aggrieved by the death of his father and denial of justice, Hariya’s son Sohan files a
special leave to appeal under Art.136 of the Constitution against the Government of
India to challenge the constitutionality of Sec.8(c) of the POA Act being violative of
Art.14 and 15 and Rule 12 of RTI Rules 2017, being violative of Art.19 (1) (a) and
against the objectives of the RTI Act, 2005 enshrined in its Preamble.
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SUMMARY OF ARGUMENTS
It is humbly submitted before the Hon’ble Supreme Court that, the Special Leave Petition
filed by the petitioner, Mr. Sohan is not maintainable, as the matter involves a substantial
question of law as it concerns Sec. 8(c) of the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act,1989 which is in violation of Article 14 and 15 of the
Constitution of India and Rule 12 of Right to Information Rules,2017 is in violation of
Article 19 of the Constitution of India and against the objectives of the RTI Act.2005
enshrined in its Preamble . If the Supreme Court does not intervene, it will result in gross
injustice and that miscarriage of justice has already occurred by the erring judgment of the
Session Court, which held Rama Ram innocent. Therefore, the special leave petition of
petitioner must be accepted, so that the Hon’ble Court can use its wide jurisdiction to correct
wrong done by the decision.
It is humbly contended by the respondent that Section8(c) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act, 1989 is constitutional as it was enacted for
the welfare of people belonging to Scheduled Castes and Scheduled Tribes. In the present
case Sec 8(c) was added for the upliftment of the Scheduled Castes and Scheduled Tribes.
The objectives of this section clearly emphasize the intention of the government to deliver
justice to these communities and enabling them to live in society with dignity and self-esteem
and without fear of atrocities. Therefore Sec 8(c) has rational nexus with its parent act and it
is Constitutional.In the instant case the government made provisions for the advancement of
the Scheduled Castes and Scheduled Tribes. Sec 8(c) passed by the legislature fully
contributes in prevention of atrocities against Scheduled Castes and Scheduled Tribes.
It is humbly submitted by the respondent that Rule 12 of RTI rules 2017 is not violative to
Art 19 of the Constitution of India. In the instant case government did not impose any
restrictions on right to know of the citizen. Government only excludes a dead person from
this right so far as a dead person cannot speak or express himself. The government passed
this rule in RTI Act, 2005 in keeping in view pendency of RTI applications before Public
Information Officer and Rule 12 does not put any restrictions on the rights of the citizens.
Therefore Rule 12 is constitutional and no proceedings shall be carried on this issue.
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ARGUMRNTS ADVANCED
In Pritam Singhv. the State6, the Supreme Court held that, the court will not grant special
leave, unless it is shown that exceptional and special circumstances exist, that substantial and
grave injustice has been done and that the case in question features of sufficient gravity to
warrant a review of the decision appealed against.In the instant case, no exceptional and
special circumstances have been shown by the petitioner and also there were no special
circumstances which could be shown by the petitioner.
It is humbly contended by the Respondent that it is not possible to define the limitations on
the exercise of the discretionary jurisdiction vested with the SC under Art. 136. But, being an
exceptional and overriding power,7naturally it has to be exercised sparingly with caution only
in special and extraordinary situations,8 therefore the present special leave petition should be
dismissed as there exists no special situation.
2
Pritam Singh v. The State AIR 1950 SC 169
3
Supra footnote 2
4
M.P Jain, Indian Constitutional Law, 576 (6th ed., Lexis Nexis Butterworth Wadhwa, Nagpur 2011); See also,
The Constitution of India, 1950.
5
Council of Scientific and Industrial Research v. K. G. S. Bhatt, (1989) 4 SCC 635; See also, State of H. P. v.
Kailash Chand Mahajan, AIR 1992 SC 1277.
6
Pritam Singh v. The state AIR 1950 SC 169
7
Narpat Singh v. Jaipur Development Authority, (2002) 2 SCC 666.
8
Dhakeswari Cotton Mills Ltd. v. CIT West Bengal, AIR 1955 SC 65
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It is humbly contended by the Respondent that the present case is totally based on finding of
facts; no substantial question of law is involved. Petitionercontented that Rama ram knew that
Hariya belongs to Scheduled Caste but it was proved by Rama Ram that he did not know
whether Hariya belongs to Scheduled Caste, therefore it is purely a question of fact; hence the
present special leave petition should be dismissed.
1.3 The Petitioner has not exhausted alternative remedies available to him
It is humbly submitted that the doctrine of exhaustion of alternative remedies guides the
practice and procedure of the SC in the exercise of its power conferred under Art. 136. As per
the principle, all the statutory remedies would have to be exhausted before approaching the
SC under its special jurisdiction, unless special circumstances can be shown to convince the
court that it must allow the appeal.13
In the case of Onkarlal Nandlal v. State of Rajasthan14, it was held that when there are other
remedies by way of appeal or revision available to the petitioner under the statute then
petitioner should exhaust those remedies first.
In Manoranjan Roy v. State of Assam and Others15, petitioner has an alternate remedy
therefore the Supreme Court reject the SLP. Similarly, inJyotendra sinhji v. Tripathi and
9
AIR 1986 SC 1748
10
CIT v. Maganlal Chaganlal (P) Ltd. (1997) 11 SCC 557.
11
AIR 1971 SC 720.
12
AIR 1986 SC 1849
13
British India Steam Navigation Co. v. Jasjit Singh, Additional Commissioner of Customs, AIR 1964 SC 1451
14
AIR 1986 SC 2146
15
(2009) 12 SCC 368
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Ors16, the Supreme Court held that the petitioner should exhaust other remedies available to
him before approaching to SC under article 136.17
In the instant matter, the petitioner approached this Hon’ble Court through a SLP 18 without
resorting to the appeal to the court under Art. 3219and Art. 22620 of the Constitution of India
which was available to him as an alternative remedy and the petitioner also had an option to
approach the Hon’ble high court under sec. 48221but he did not use those provided remedies.
The respondents humbly submits that keeping in view the precedents laid down by the Apex
Court the present special leave petition is not maintainable.Therefore the SLP should be
dismissed.
16
AIR 1993 SC 1991
17
Supra footnote 1
18
Moot proposition
19
Remedies for enforcement of rights conferred by part III
20
Power of High Courts to issue certain writs
21
Criminal procedure code 1973
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22
In a prosecution for an offence, if it is proved that- (c) the accused was having personal knowledge of the
victim or his family, the court shall presume that the accused was aware of the caste or tribal identity of the
victim, unless the contrary is proved.
23
The State shall not deny to any person equality before the law or the equal protection of the law within the
territory of India.
24
Namit Sharma v. Union of India, (2013) 1 SCC 745.
25
M.P.V .Sundaramier& Co v. State of A.P, A.I.R 1958 SC 468
26
Art 246(2)
27
Jalan Trading Co v. Mill Mazdoor Sabha, AIR 1967 SC 691
28
Naga People’s Movement v.Union of India (1998) 109
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It is humbly contended by the respondent that Art.14 provides equality before law and equal
protection of law. While Art.14 forbids class legislation, it does not forbid reasonable
classification for the purposes of legislation29. Administrative actions in India allegedly
affecting fundamental freedoms has always been tested on some tests. The test of reasonable
classification was laid down by the Supreme Court in Bhudan Choudhary v. State of
Bihar30,which provides that:
(2) There must be close nexus between the classification and the object of the Act.
In the present case Sec 8(c)32 was added for the upliftment and advancement of the Schedule
Castes and Schedule Tribes. Before Sec 8(c) the burden of proof was on petitioner to prove
that accused was aware of the caste or tribal identity of the victim but now after adding Sec
8(c) the court shall presume that the accused was aware of the caste or tribal identity of the
victim hence the burden of proof has been shifted on accused that he was not aware of the
caste or tribal identity of the victim. Sec 8(c) is in favor of theschedule castes and schedule
tribes. Therefore Sec 8(c) is constitutional and reasonable.
29
Kedar Nath Bajoria v. State of West Bengal AIR 1953 SC 404
30
AIR 1955 SC 191
31
AIR 1952 SC 75
32
Supra footnote 22
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It is humbly contended by the respondent that Art.14 in its ambit and sweep permits
reasonable classification which is founded on the principle needs of the society and
differential must have a rational relation to the object to be achieved. Further, it does not
allow any kind of arbitrariness and ensure fairness and equality of treatment. In Re Special
Court bill 197835 held that it is necessary that there must be nexus between the basic of
classification and object of the act which makes the classification.
In the instant case Sec 8(c) has rational nexus with its parent Act as the main object of
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 was to “prevent
atrocities against Scheduled Castes and Scheduled Tribes”. The preamble of respective Act
also states that the act is “to prevent the commission of offences of atrocities against the
member of the scheduled castes and scheduled tribes”. The government has the same object
behind Sec 8(c). The objective of this section clearly emphasizes the intention of the
government to deliver justice to these communities and enabling them to live in society with
dignity and self-esteem and without fear of atrocities. Therefore Sec 8(c) has rational nexus
with its parent act and it is constitutional.
Test of Arbitrariness
It is humbly contended by the respondent that arbitrariness means in an unreasonable manner,
as fixed or done founded in nature of things, non-rational, not done or acting according to
reason or judgment, depending on will alone.36 Sec 8(c) was a well thought- out
administrative action, there was no element of whim or ambiguity which would make it fall
within the purview of definition of ‘arbitrariness.
In R.D Shetty v.Airport Authority37, the SC held that for determining whether legislative or
executive action is arbitrary it is merely a judicial formula that is the classification reasonable
and does satisfy above mentioned two conditions. In the instant case Sec 8(c) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 isbased on
33
Suresh Kumar Koushal v. Naz Foundation (2014) 1 SCC 1 See also Mihir Alias Bhikari Chauhan Sahu v.
....State, 1992 Cri LJ 488.
34
M.P JAIN, Indian Constitutional Law ,917 (7 thed.,Lexis Nexis Butterworth Wadhwa, Nagpur,2015)
35
AIR 1979 SC 478
36
Sharma Transport v. State Of A.P AIR 2002 SC 322
37
AIR 1979 SC 1628
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intelligible differentia and is therefore, not arbitrary and unreasonable. It has a close nexus
with the objective of the Act and therefore it is not arbitrary or unreasonable.
It is humbly contended by the respondent that Sec.8(c) is not violative to Art.15. According
to Art. 15(4) State can make any special provisions for the advancement of any socially and
educationally backward classes or for the Scheduled Castes and Scheduled Tribes. In Union
of India v .R. Rajeshwaram40, the SC held that Art.15 (4) confers discretion and does not
create any constitutional duty or obligation.
Similarly, in Gulshan Praksah v. State of Haryana41the SC held that Art 15(4) is read as an
enabling provision under which the state may make special provisions, but the Government is
not bound to make such a provision.In the instant case government made provision for the
advancement of scheduled castes and scheduled tribes. Sec 8(c)42 passed by the legislature
contributes in prevention of atrocities against Scheduled Castes and Scheduled Tribes.
38
Art 5 of Universal Declaration of Human Rights
39
Art. 7 of Universal Declaration of Human Rights
40
(2003) 9 SCC 294
41
Gulshan Praksah v. State of Haryana, AIR 2010 SC 288
42
Scheduled Castes and Scheduled Tribes Act,1989
43
AIR 1963 SC 703
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The expression “Freedom of Speech and Expression” in Article 19(1) (a)46 has been held to
include the Right to acquire information and disseminate the same. Right to information is
included within the definition of freedom of speech and expression as has been
recognized by the Supreme Court in, Bennette Coleman V. Union of India.47
However the freedom guaranteed under Art.19 (1) (a) is not absolute as no right can be.
Accordingly, clause 2 of Art. 19 lay down the grounds and the purposes for which a
legislature can impose ‘Reasonable Restrictions’ on the rights guaranteed underArt.19 (1)
(a). But in the instant case the Government did not impose any restrictions on right to know
of the citizen and in Chintaman Rao v.State of Madhya Pradesh48, the Supreme Court held
that if a legislative enactment does not put any restriction on fundamental right then
constitutional validity of the act cannot be challenged.Therefore the question of constitutional
validity of the rule cannot be raised in the instant case.
Right to Information Act,2005 gives a right to every citizen of India to seek information from
any department. Government only excludes a dead person from this right so far as a dead
person cannot speak or express himself. It is not a restriction on the exercise of right to know.
Language of Article 19(1) (a) is “freedom of speech and expression”. Expression means
sharing our own thoughts by anyway and understanding someone else’s thought by
anyway. It is clear from the language that it confers a right to express himself. Right to
know is also added in this right by the decision of the Supreme Court but a dead person
cannot express himself anyhow and that is whydead person does not have a right to know as
only an alive person can understand the workings of the government and he is capable to seek
any information from any government body. Therefore government brought Rule 12 in RTI
Rules in 2017.
44
Protection of certain rights regarding freedom of speech etc
45
AIR 1996 SC 770
46
Article 19 - Protection of certain rights regarding freedom of speech etc
...(1) All citizens shall have the right (a) to freedom of speech and expression;
47
AIR 1973 SC 60
48
AIR 1951 SC 118
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The Counsel on behalf of the respondent humbly contends that the Government does not have
any intention of denying toprovide the information. Government gives right to information to
every citizen by RTI Act,2005 even a person who is of unsound mind, minor or has other
disabilities can also ask for information from any department. Government has bona fide
intention behind drafting of Rule 12.
It is also submitted that, from the enactment of this act, when Rule 12 was not in exercise,
Government did not receive a single application from legal heirs of the applicant for the
information. Consequently result is meted out as increase in pendency before the public
information officer.
It is humbly contended by the respondent that Rule 12 is not a new rule. It is continued from
2007. In Central Information Commission (management) regulation, 2007, it is provided
that the proceeding pending before the commission shall abate on the death of appellant or
complainant.49
The government passed this rule in RTI Act keeping in view pendency of RTI applications
before Public Information Officer and Rule 12 does not put any restrictions on right of the
citizens. Therefore Rule 12 is constitutional and no proceedings shall be carried on this issue.
3.1. Is rule 12 of RTI Rules, 2017 against the objectives of the RTI Act, 2005
enshrined in its Preamble?
It is humbly contended by respondent that Rule 12 of RTI Rules, 2017 is in accordance with
the objectives enshrined in the Preamble of the Right to Information Act, 2005. The main
objective of the RTI Act,2005is toenable citizens to actively participate in governance, to
make the information available regarding government activities, about the people whom they
elect; about bureaucrats; about benefits which are conferred on citizens in various walks of
life and information about governance. Rule 12 of RTI Rules does not follow the objective of
this act. The objective of Rule 12 is to reduce the pendency, not to deny access to
information.
“An Act to provide for setting out the practical regime of right to information for citizens to
secure access to information under the control of public authorities, in order to promote
transparency and accountability in the working of every public authority, the Constitution of
a Central Information Commission and State Information Commissions and for matters
connected therewith or incidental thereto.
49
Sec 24 , The Central Information Commission(management)Regulations,2007
50
Right To Information Act, 2005
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And whereas revelation of information in actual practice is likely to conflict with other public
interests including efficient operations of the Governments, optimum use of limited fiscal
resources and the preservation of confidentiality of sensitive information;
And whereas it is necessary to harmonise these conflicting interests while preserving the
paramountcy of the democratic ideal;
Now, therefore, it is expedient to provide for furnishing certain information to citizens who
desire to have it.
It is clear from the Preamble that this act was enacted to provide for legal right to information
for citizens to secure access to information under the control of public authorities, in order to
promote transparency and accountability in the working of every public authority and after
the Rule 12 none from these objects are emaciated. Therefore rule 12 is in accordance with
the objects which are enshrined in the Preamble of RTI Act, 2005.
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2. Sec. 8(c) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities)
Act, 1989is constitutional as it is not violative of Art.14 and 15 of the Constitution of
India.
3. Rule 12 of the RTI Rules, 2017 is constitutional as it is not violative of Art.19 (1) (a)
and not against the objectives of the RTI Act, 2005 enshrined in its preamble.
AND / OR
Pass any other order, direction or relief that it may deem fit in the best interest of justice,
fairness, equity and good conscience.
Respectfully Submitted by
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