Beruflich Dokumente
Kultur Dokumente
THIRD PROF. N.R. MADHAVA MENON SAARC MOOTING COMPETITION, 2017-18 (INDIA
ROUNDS)
In the Matter of :
v.
And
And
v.
CLUBBED WITH
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THIRD PROF. N.R. MADHAVA MENON SAARC MOOTING COMPETITION 2017-18: INDIA ROUNDS
TABLE OF CONTENTS
1.1 The Supreme Court is empowered by Article 145(3) r/w Article 136 of the Constitution of
Eden ........................................................................................................................... 1
1.2 The Writs filled by Mrs. K, Mr. X and Peoples Cause Forum are maintainable .
.................................................................................................................................... 1-3
1.3 The Court is Competent to Provide Relief ...........................................................3-4
2.1 The three main organs of the government have to work in tandem for a strong and healthy
democracy..................................................................................................................4-5
3.2 Freedom of speech for debate in Parliament is protected within the House, not outside
.................................................................................................................................... 9
3.3. Freedom of press to be read harmoniously .........................................................10-13
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4.2 Right to reputation is a natural and personal right ............................................... 16-18
4.4 Enquiry by Committees and Sub-Committees cannot surpass this right ............. 21-23
PRAYER.......................................................................................................................30
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INDEX OF AUTHORITIES
CASES
2.A.P. Pollution Control Board (2) v. Prof. M.V. Nayudu, (2001) 2 S.C.C.. 62.........................27
3.Ahmedabad Municipal Corporation v. Nawab Khan Gulab Khan, A.I.R. 1997 S.C. 152 ….28
7.Ashok Kumar Alias Golu vs Union Of India And Ors, (1991) 3 S.C.C. 498..........................19
13.Bandhua Mukti Morcha v. Union of India & Ors, (1997) 10 SCC 549.....................................2
20.Bihar EGF Co-operative Society v. Sipahi Singh, A.I.R. 1977 S.C. 2149................................23
25.Byrraju Ramalinga Raju v. The State CBI,Criminal Petition No. 5454 of 2009.17
26.CESC Ltd. vs. Subash Chandra Bose, A.I.R. 1992 S.C. 573.........................................................27
30.Chhetriya Pardushan Mukti Sangharsh Samiti v. State of U.P., (1990) 4 S.C.C. 449............28
34.Consumer Education and Research Centre v. Union of India, A.I.R. 1995 S.C. 922.............26
37.Council of Civil Service Unions v. Minister for the Civil Service, [1985] AC 374...............22
47.Dr. Aditya Shrikant Kelkar and Others v. State of Maharashtra and Others, 1998 (4)
Bom.C.R. 16.............................................................................................................................................27
48.Dr. Jatish Chandra Ghosh v. Hari Sadhan Mukerjee A.I.R 1961 S.C. 613......................................8
49.Employees' State Insurance Corporation and Ors. v. The Workmen of ITI Ltd. and Ors.,
53.Foaminol Laboratories Ltd v. British Artid Plastics Ltd [1941] 2 All ER 393...............................16
54.Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors., AIR
1981 SC 746.............................................................................................................................................18
56.Fulton v. Globe & Mail Ltd, (1997) 152 DLR (4th) 377; Butler 2000b.....................................16
60.Governing Body of Devi Kandal Nityanand College v. State of Orissa, A.I.R. 1989
Orissa 165..................................................................................................................................................3
64.Haridas Das v. Usha Rani Banik and others, (2007) 14 S.C.C. 1.................................................21
73.Huzra Bee v. The State of Madhya Pradesh and Others, W.P. No.9060/2017..........................17,22
76.Indian Council for Enviro-Legal Action v. Union of India, (1996) 3 S.C.C. 212...................28
77.J.P.Ravidas v. Navyuvak Uthapan Multiunit Industrial Co-op Society Ltd., A.I.R. 1996
S.C. 2151...................................................................................................................................................28
87.Kehar Singh and Anr. v. State of Delhi Admn., A.I.R. 1988 S.C. 1883......................................22
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90.King and Mergen Holdings Pty Ltd v. McKenzie (1991) 24 NSWLR 305...............................16
91.Kiran Bedi & Jinder Singh v. Committee of Inquiry, A.I.R. 1989 S.C. 714.............................17
97.Kumkum Khanna v. Principal, Jesus and Mary College, A.I.R. 1976 Del. 35.........................3
101.Leempoel & S.A. ED. Ciné Revue v. Belgium, App. No. 64772/01...........................................15
113.Maneka Gandhi v. Union of India, A.I.R. 1978 S.C. 597 ................................................... 17,29
114.Maruti Shripati Dubal v. State of Maharashtra, 1987 (1) Bom CR 499 .............................. 14
116.Medžlis Islamske Zajednice Brčko and Others v. Bosnia and Herzegovina, App. No.
17224/11 ........................................................................................................................... 14
117.Mehmood Naiyyar Azam v. State of Chattisgarh, A.I.R. 2012 S.C. 2573 .......................... 17,18
119.Midland Metals Overseas Pty Ltd v. The Christchurch Press Co Ltd, [2002] 2 NZLR
289 ..................................................................................................................................... 16
122.Milk Men Colony Vikas Samiti v. State Of Rajasthan, (2007) 2 S.C.C. 413. .................... 28
123.Milkovich v. Lorain Journal Co, 497 U.S. 1; 110 S Ct 2695, 2702 (1990) ....................... 18
124.Minister for Arts, Heritage and Environment v. Peko-Wallsend Ltd, (1987) 15 FCR
274.. ................................................................................................................................... 22
126.Mohammed Quadeer and others v. Commissioner of Police, 1999 (3) A.L.D. 60 ............. 17
131.Mustafa Erdoğan and Others v. Turkey, Apps. No. 346/04 and 39779/04 ......................... 15
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138.Naz Foundation v. Government of NCT and ors., 160 (2009) D.L.T. 277...............................27
144.Onion v. Supreme Temple Pythian Sisters, 227 Mo.App. 557, 54 S.W.2d 468......................3
147.Paschim Banga Khet Mazdoor Samity & ors v. State of West Bengal & ors, A.I.R.
149.Pathumma and Ors.v. State of Kerala and Ors., AIR 1978 SC 771............................................17
151.Peter Thomas Mahon v. Air New Zealand Ltd & Ors., 1983 U.K.P.C. 29...............................18
154.Petrus and Another v. The State,1984 BLR 14; State of Punjab v. Devans Modern
Breweries Ltd...........................................................................................................................................19
159.Praveen Rashtrapal, I.R.S. (Retd.) v. Chief Officer, Kadi Municipality and ors., (2006)
3 G.L.R. 1809;.........................................................................................................................................27
160.Prem Chand Garg v. Excise Commissioner, U.P., A.I.R. 1963 S.C. 996..................................2
(2004)2UPLBEC1691...........................................................................................................................2
170.Raja Ram Pal v. Hon’ble Speaker, Lok Sabha ( 2007) 3 S.C.C 184..........................................8
171.Rajeev Kumar and ors. v. The State of U.P. Through Principal Secretary, Ministry of
173.Re T and Director of Youth & Community Services, [1980] 1 N.S.W.L.R. 392....................14
181.S.R. Chaudhuri v. State of Punjab and others (2001) 7 SCC 126 ....................................... 19
182.Sakal Papers (P) Ltd. v. Union of India AIR 1962 SC 171 ................................................. 11,19
185.Saraswati Industrial Syndicate Ltd v. Union of India, A.I.R. 1975 S.C. 46........................ 3
189.Shantistar Builders v. Narayan Khimalal Totame, A.I.R. 1990 S.C. 630 ........................... 28
190.Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav
Smarak Trust and Ors. v. V .R. Rudani and Ors., A.I.R. 1989 S.C. 1607 ........................ 3
191.Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar and others, A.I.R. 1958 S.C.
538 ..................................................................................................................................... 22
192.Shri Susant Kumar Chand v. Orissa Legislative Assembly A.I.R 1973 Ori. 111 ............... 8
193.Singleton v. John Fairfax & Sons Ltd [No 1], [1983] 2 NSWLR 722 ................................ 16
198.Smt. Kiran Bedi v. Committee of Inquiry , A.I.R. 1989 S.C. 714. ..................................... 20
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201.Sri S. Santhanam, I.A.S. And Anr. v. State Of Andhra Pradesh Rep. By Chief Secretary
207.State of Maharashtra v. Public Concern for Governance Trust , A.I.R. 2007 S.C. 777........….20
223.Tej Kiran Jain and others v. N. Sanjeeva Reddy and others A.I.R 1970 S.C.1573................8
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224.The State of Jammu and Kashmir & Ors. v. Bakshi Gulam Mohammad & Anr., 1966
230.U.P. Avas Vikas Parishad v. Friends Coop. Housing Society Limited, A.I.R. 1996 S.C.
114.; .................................................................................................................................28
232.Umesh Kumar v. State of Andhra Pradesh and Another, (2013) 10 S.C.C. 591. ............... 17
233.Vellore Citizens Welfare Forum v. Union of India, A.I.R. 1996 S.C. 2721 ....................... 28
240.Walter v. Alltools Ltd, (1944) 171 LT 371; 61 TLR 39; [1944] WN 214 .........................16
STATUTES
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CONSTITUTION
1.Constitution of Ecuador..............................................................................................................................25
2.Constitution of Eden……………………………………………………1,5,6,9,13,19,23
3.Constitution of India…………………………………………………….2,27,29,30
5.Constitution of Turkey................................................................................................................................16
ARTICLES
1.Aharon Barak, A Judge On Judging; The Role Of The Supreme Court 116 HARVARD
2.Alan Gewirth, Are All Rights Positive?30 (3) PHILOSOPHY & PUBLIC AFFAIRS (2001)............14
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3.Geetika Sood, Parliamentary Democracy In India: Legal Issues And Challenges, 15(1)
4.Jefferson B. Fordham & Theodore H. Husted, Jr., John Marshall and the Rule of Law,
5.Johan Steyn, The Case For The Supreme Court, 118 LAW. Q. REV. (2002). ........................5
7.Rodney Smolla, Chief Justice Harry L. Carrico And The Ideal Of Judicial Independence,
1984). ................................................................................................................................21
TREATISES
11.European Convention for the Promotion of Human Rights and Fundamental Freedoms ...…25
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13.International Convention on the Protection of the Rights of All Migrant Workers and
BOOKS
(1985) ................................................................................................................................7
5.D.D. BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA (21st edn., 2015). .................4,6
6.DAVID ROLPH, REPUTATION, CELEBRITY AND DEFAMATION LAWS (2016). ........................13
7.DE SMITH & J. M. EVANS, DE SMITH'S JUDICIAL REVIEW OF ADMINISTRATIVE ACT (4th
8.DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA (8th ed., 2008). ...........17
9.ERSKINE MAY, A TREATISE UPON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF
11.HAROLD LUNTZ & DAVID HAMBLY, TORTS: CASES AND COMMENTARY (5th edn, 2002). ...13
13.IRSHAD HIJAZI, MEDIA LAWS AND ETHICS (1st edn., 2015) .................................................11
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18.JUSTICE G.P. SINGH, PRINCIPLES OF STATUTORY INTERPRETATION (14th edn., 2016) ........ 19
24.NITSAN CHOREV, THE WORLD HEALTH ORGANIZATION BETWEEN NORTH AND SOUTH
(2012) ................................................................................................................................ 24
27.RICHARD PIERRE CLAUDE & BURNS H. WESTON, HUMAN RIGHTS IN THE WORLD
30.W. GELLHORN & C. BYSE, ADMINISTRATIVE LAW, CASES AND COMMENTS (5th ed.,
1970). ................................................................................................................................ 3
31.WILLIAM BLACKSTONE, COMMENTARY OF THE LAWS OF ENGLAND (4th ed. 1899) ............. 17
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MISCELLANEOUS
1.Dean Spielmann & Leto Cariolou, The Right to Protection of Reputation Under The
2.Letter by Lord Acton to Archbishop Mandell Creighton, dated Apr. 5, 1887 available at:
https://history.hanover.edu/courses/excerpts/165acton.html. ........................................... 5
http://www.ohchr.org/Documents/Publications/Factsheet31.pdf. .................................... 24
5.Rosemary Righter, Freedom and “Balance”: the Global Media Controversy ......................7
7.Sir Joseph Bhore, Report of the Health Survey and Development Committees (1946). ...... ..27
8.The Committee on Economic, Social and Cultural Rights and the Committee on the
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STATEMENT OF JURISDICTION
This Court is competent to hear to the petition under Art. 136 r/w 145(3) of the Constitution
the Hon’ble Supreme Court of Eden constituted a constitution bench to hear the matter which
STATEMENT OF FACTS
THE BACKGROUND
Eden formerly a British colony, gained independence in 1947 and is governed by the
Constitution establishes it as the Union of States. The basic feature of its Constitution is
federalism, fundamental rights and a liberal democratic government. Replete with human and
natural resources the country showed a stable growth rate. The newly elected government of
the Eden Heritage Party, came in power in January, 2016 advocated the principle of
‘Minimum Government’ and ‘Maximum Governance’ with particular emphasis on health and
education.
SHCG being a nodal agency, received assistance from government and International Funds.
Mrs. K, the chief executive of a voluntary organization named Social Health Care Group
(hereinafter, SHCG), works to provide for reproductive assistance to infertile couples and
happens to be, the leader of opposition shall be ex officio Chairman of Public Accounts
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Committee (hereinafter, PAC), which examines the revenue and expenditure of Government.
Its function extended to its wisdom, faithfulness and economy in cases of financial
(hereinafter, VO) and newspapers reported such misuse of funds along with influence of
political patronage.
With the news of irregularities in fund appropriation by the VO’s, a Public Interest Litigation
(hereinafter, PIL) was filed by ‘People’s Cause’ regarding substantial funding to VO’s and
Non-Governmental Organization (hereinafter, NGO). The order of Supreme Court called for
initiation of civil and criminal action against the VO’s/NGO. The Government issued a
tentative test of VO’s for its ban or restriction. Meanwhile the political nexus of Mrs. K and
her exorbitant salary and travel expenses also caused media unrest.
THE SUB-COMMITTEE
In the backdrop of the above factual situation, a Sub-Committee was formed under the PAC
headed by Dr. A, which Mrs. K was invited by Sub-Committee to depose off before it in July
2016.The Sub-Committee did not compel her and as per principles of Commission of Enquiry
Act, 2013 (hereinafter, Act of 2013). She was not under obligation to attend it. Although she
attended the proceedings, but complained of “unfair treatment” and “searching question”
without advance notice. She approached the Speaker of the House to declare the functioning
of Sub-Committee contrary to the law and in violation of the provisions of the Act of 2013.
Before all this in 2015, drugs manufacturing companies (hereinafter, the ‘Companies’)
approached SHCG for collaboration for experimentation of a drug/vaccine to cure infertility.
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To which the permission was granted by the government. The companies got the drugs
influence was found however, serious adverse effects began to be communicated to the
Government. The terms of enquiry of sub-committee was enlarged. Mrs. K was re-invited by
the sub-committee to which she declined and reminded of the letter given to the Speaker.
However, the Sub-Committee sent a questionnaire to her along with a notice to companies
THE REPORT
Dr. A submitted the report of Sub-Committee in Budget Session, but it was not tabled and a
press conference was called by Dr. A, was alleged to leak the findings of the report. After the
People’s Cause filled PIL for questioning the inaction of appropriate authority. The report
was the foundation of the petition and there was question of need for enactment of
legislation. Supreme Court issued limited notice and asked for expeditious completion of
pleadings in Monsoon Session. In the Session as questions were raised on Mr. X and his
influence, so due to his absence the session was adjourned sine die. The matter of Breach of
Privilege was raised. A writ petition was filled by Mr. X and made Hon’ble Speaker a party.
Mr. ‘X’ filed another petition for declaration to quash the report of the Sub-Committee. He
soughs writ of Mandamus to restrain any debate on report before the house. The petitions
have been stated for hearing by the Constitution Bench of Supreme Court.
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STATEMENT OF ISSUES
CONSTRUED HARMONIOUSLY
SUMMARY OF ARGUMENTS
It is humbly submitted by the counsels before the Hon’ble Supreme Court that it is within the
jurisdiction of this court to entertain the issues involved as the subject matter involves
that the present case involves determining the extent of Article 21, 21H, 21D and Article 102
It is humbly submitted by the counsels before the Hon’ble Supreme Court that Article 102 of
the Constitution of Eden is invalid as it restricts the judicial review. It is further submitted
that such a restriction is arbitrary, unreasonable and would result in miscarriage of justice.
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CONSTRUED HARMONIOUSLY
.It is humbly submitted by the Counsels before the Hon’ble Supreme Court that Freedom of
Speech & Expression and Parliamentary Privileges are to be construed with reference to the
other so as to make both consistent and not redundant. It is duty of the court to avoid head on
clash between Freedom of Speech & Expression and Parliamentary Privileges. It is further
It is humbly submitted by the counsels before the Hon’ble Supreme Court that Right to
Reputation is sine qua non for dignified life as enshrined under Article 21 of the Constitution
of Eden.
It is humbly submitted by the counsels before the Hon’ble Supreme Court that Right to
submitted by the counsels that state or any other person in any manner cannot violate such a
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ARGUMENTS ADVANCED
[¶1] The Court has jurisdiction to hear and dispose of the present case as is mandated by
Article 145(3) of the Constitution of Eden [1.1], the Writs filled by Mrs. K, Mr. X and and
Peoples Cause Forum are maintainable [1.2] the Hon’ble Court is competent to provide
relief [1.3].
[1.1] The Supreme Court is empowered by Article 145(3) r/w 136 of the Constitution of
Eden
[¶2] In the present case, the reference has been made to the court under Article 145(3) of the
Constitution of Eden. Article 145 (3) r/w 136 of the Constitution of Eden empowers this
Court to entertain the matter as it involves substantial question of law as to the interpretation
for a national government sufficiently strong and flexible to meet the needs of the republic,
yet sufficiently limited and just to protect guaranteed rights of citizens; it permits a balance
between society's need for order and the individual's right to freedom. To assure these ends,
the Framers of the Constitution bestowed the power to interpret the constitutional provisions
[1.2] The Writs filed by Mrs. K, Mr. X and Peoples Cause Forum are maintainable
[¶4] The PIL along with the two writs are maintainable in the present case under Article 32 of
the Constitution of Eden writ petition for enforcement of fundamental rights can be
questioned only on the ground of laches, where disputed questions of facts are involved or
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THIRD PROF. N.R. MADHAVA MENON SAARC MOOTING COMPETITION 2017-18: INDIA ROUNDS
mentioned above exists in the present case. The writ petitions have been filed for Violation of
[¶5] There is a right to move the Supreme Court, by appropriate proceedings, for the
1
enforcement of the Fundamental Rights enumerated in the Constitution. Right to access to
2
the Supreme Court is a fundamental right. The Courts are the protector and guarantor of the
Fundamental Rights and play the role of a ‘sentinel on the qui vive’ and they must always
regard it as their solemn duty to protect the said Fundamental Rights ‘zealously and
3 4
vigilantly’. The Counsels humbly submit that there was a violation of fundamental rights
and that there was a public interest involved. There is a Right of Access to Healthcare in the
5 6
Constitution of Eden. The right is also inherent in Indian Constitution.
[¶6] The subject-matter involved i.e Right of Access to Health Care falls under the purview of
7
‘public concern’. Petitions have been entertained by Indian Courts espousing the cause of
over down- trodden or “little Indians” and that they can be espoused by any person having no
interest in the matter. The Counsels humbly submit that the as the experimentation of new
1 INDIA CONST., art. 32 cl.1; see also, K.D. GAUR, CRIMINAL LAW AND CRIMINOLOGY 568 (2002); M. R.
BIJU,
HUMAN RIGHTS IN A DEVELOPING SOCIETY 153 (2005); K.D. GANGRADE, SOCIAL LEGISLATION IN INDIA 23
(1978).
2 State of Madras v. V.G Row, A.I.R. 1952 S.C. 196.
3 Prem Chand Garg v. Excise Commissioner, U.P., AIR 1963 SC 996
4 ¶¶ 34-53, MEMORANDUM ON BEHALF OF PETITIONER, Prof. N.R. Madhava Menon SAARC Mooting
Competition 2017-18.
5 EDEN CONST., art. 21H
6 Thiagraj Soobramoney v. Minister of Health, 1998 (1) SA 765 (CC); Paschim Banga Khet Mazdoor
Samity & ors v. State of West Bengal & ors, A.I.R. 1996 S.C. 2426.
7 Bandhua Mukti Morcha v. Union of India & Ors, (1997) 10 SCC 549; M.C. Mehta v. Union of India &
Others, (1987) 4 S.C.C. 463; Rajeev Kumar and ors. v. The State of U.P. Through Principal Secretary, Ministry
of Sugarcane Development and ors., 2006(1)AWC34; New Sun Education Society (Regd.) Through Its
Secretary Sri Haji Muqeet Ali v. State of Uttar Pradesh Through Secretary, Department of Home and ors.,
2008(2)AWC1186; Professor G.K. Rai v. Chancellor, University of Allahabad and ors., (2004)2UPLBEC1691.
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THIRD PROF. N.R. MADHAVA MENON SAARC MOOTING COMPETITION 2017-18: INDIA ROUNDS
drug was sponsored through the NGO ‘SHCG’ any claims for any wrongs or injuries and for
the compensation in cases of any mishap was to be routed through the NGO ‘SHCG’.
8
Grievance of the women who were subjected to drug trial by the two companies, the alleged
9
deaths of two women, calls for an action which was taken by People’s cause.
[¶7] Mandamus is a command directed to the inferior court, tribunal, board, corporation or
any administrative authority or a person requiring the performance of a specific duty fixed by
10
law or associated with the office occupied by the person. It can be given by the Supreme
Court or the High Court of a state. Mandamus has been used by American courts to review
11
administrative action.
[¶8] The Writ can be granted against a public authority if it acted against the law, exceeded its
limits of power, acted with mala fides, did not apply its mind, abused its discretionary
powers, did not take into account relevant consideration or has taken into account irrelevant
12
consideration. To be enforceable by mandamus a public duty does not necessarily have to
13
be one imposed by statute.
8 ¶ 17, Page 7, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-
18.
9 ¶ 35, Page 11, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
10 Lahiff v. St. Joseph, etc., Soc., 76 Conn. 648, 57 A. 692, 65 L.R.A. 92, 100 Am.St.Rep. 1012; Onion v.
Supreme Temple Pythian Sisters, 227 Mo.App. 557, 54 S.W.2d 468, 469; People v. Nelson, 346 Ill. 247, 178
N.E. 485, 487.
11 W. GELLHORN & C. BYSE, ADMINISTRATIVE LAW, CASES AND COMMENTS 119-20 (5th ed., 1970).
12 Poonam v. State of UP and Others, (2016) 2 SCC 779; Sambhavana v University of Delhi, (2013) 14
SCC 781; Kabul Singh v. Niranjan Singh, A.I.R. 1958 Punj. 168; R v. Dunshett, (1950) All E.R. 741; Sales Tax
Officer v. Kanhaiyalal, A.I.R. 1959 S.C. 135; Governing Body of Devi Kandal Nityanand College v. State of
Orissa, A.I.R. 1989 Orissa 165; Sekkilar v. Krishna Moorty, A.I.R. 1952 Mad. 151; Harendra Chandra Das v.
Gauhati University, 1953 C.W.N. 54; Hemendra v. Gauhati University, (1953) C.W.N. 54 Assam; Kumkum
Khanna v. Principal, Jesus and Mary College, A.I.R. 1976 Del. 35; Tapendra Nath Roy v. University of Calcutta,
A.I.R. 1954 Cal. 141; State of MP v. Mandawara, A.I.R. 1954 S.C. 493; Barada Kanta v. State of West Bengal,
A.I.R. 1963 Cal. 161; Saraswati Industrial Syndicate Ltd v. Union of India, A.I.R. 1975 S.C. 46; Bihar EGF Co-
operative Society v. Sipahi Singh, A.I.R. 1977 S.C. 2149.
13 Shri Anadi Mukta Sadguru Shree Muktajee Vandasjiswami Suvarna Jayanti Mahotsav Smarak Trust
and Ors. v. V .R. Rudani and Ors., A.I.R. 1989 S.C. 1607; D E SMITH & J. M. EVANS, DE SMITH'S JUDICIAL
REVIEW OF ADMINISTRATIVE ACT 540 (4th edn, 1980).
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[¶9] The Counsels humbly submit that Mr. ‘X’’s writ petition for Mandamus against the
debate and discussions on the Report of Sub-Committee is maintainable as Dr. ‘A’ has been
14
leaking the confidentiality of the Reports in Press Conference and that when several media
persons put various pin-pointed questions to him towards the role of Mr. ‘X’ and Mrs. ‘K’, he
15
affirmed the statements made by him on the floor of the House. These acts of Dr. ‘A’ go
16
against a public servant and call for a command from this Hon’ble Court to pass an order
17
[¶10] It is humbly submitted that in a liberal democracy like Eden , Judiciary and Legislature
cannot function separately in a water-tight compartment. As they both affect the various aspects
of life of the citizens, they cannot be seen as entirely independent of each other. The Counsels
humbly submit that the three main organs of the government have to work in tandem for a strong
and healthy democracy [2.1], the independence and superiority of the judiciary has to be
[2.3].
[2.1] The three main organs of the government have to work in tandem for a strong and
healthy democracy
18
[¶11] The constitutional system of Eden is basically federal and is a fusion of several States
19
enjoying autonomy. The judiciary has a duty to check working of the wings of Government
14 ¶ 28, Page 9, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-
18.
15 ¶ 34, Page 11, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
16 § 2(c), PREVENTION OF CORRUPTION ACT, 1988; P.V. Narsimha Rao v. State, 1998(4) S.C.C. 626
17 ¶ 1, Page 2, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
18 ¶ 1, Page 2, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
19 D.D. BASU, INTRODUCTION TO THE CONSTITUTION OF INDIA 155 (21st edn., 2015).
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20
in limit. It is indeed very difficult to put the Eden Constitution in the category of a true
21
federation just like its Indian counterpart where exists a balance among the branches’
22
powers. It is also submitted that Art 102(ii) needs reconsideration as it was added
haphazardly before formation of Sub-Committee.
[¶12] The Greatest scourge an angry Heaven ever inflicted upon an ungrateful and sinning
23
people, was an ignorant, a corrupt, or a “dependent Judiciary.” The judiciary can
effectively fulfil its role only if the public has confidence that the courts, even if sometimes
24
wrong, act wholly independently and it would lead to impartial decisions and enable the
judiciary to check over-concentrations of power in the political branches hence. Federal
25
systems are marked by independence of judiciary which is an ideal fundamental to the idea
26 27
of justice. Independence of the judiciary and individual judges go hand in hand.
[¶13] The Counsels humbly cite Lord Acton where he says, “Power tends to corrupt, and
28
absolute power corrupts absolutely.” Article 102 of the Constitution of Eden specifically
put restrictions on the judicial review. Non-interference from judiciary would cause the
accountability. The Counsels submit that for the reasons submitted above, the Judiciary have
a say in the matters of regulating the internal procedure of the House of Parliament and has
29
every right to interfere in the matters of public interest wherever it may deem fit to it.
[¶14] Parliament can only add to the powers and jurisdiction of the Supreme Court but
30 31
cannot curtail them and cannot take away its powers or curtail the powers of the judiciary
32
and by doing that harms the basic structure doctrine. It is humbly submitted by the Counsels
that Parliamentary Accountability and Judicial Independence have to work hand in hand to
[¶15] Hon'ble Supreme Court is considered as the custodian of the Constitution of Eden as
interprets the Constitution to pay regards to intent of the founding fathers by safeguarding the
fundamental rights of the people and protecting the Constitution from any unconstitutional
amendments by exercising the power of judicial review. There is independence, supremacy
33
and the guardianship of the constitution by the Supreme Court. Hence, the judiciary has
every right to interfere in the matters of the legislature in order to protect the intention of
34
framers of the constitution. The Counsels humbly submit that the restriction on judicial
review is unconstitutional as it breaches the basic structure of federalism and shakes it to the
very root of it.
35 36
[¶16] Freedom of speech and expression is a fundamental human right for every person
37
around the world and is the bulwark of democratic government or “the touchstone of all the
38
freedoms to which the United Nations is consecrated.” Everyone has the right to freedom
of opinion and expression; this right includes freedom to hold opinions without interference
and to seek, receive and impart information and ideas through any media and regardless of
39
frontiers. The Counsels, inter alia, submit that free speech is sine qua non for healthy
debate in Parliament [3.1], Freedom of speech for debate in Parliament is protected within the
[3.1] Free speech is sine qua non for healthy debate in Parliament
[¶17] Freedom of speech is sine qua non for the proper functioning of the Parliament. It is
harder to define than the extent of the indefinite powers or rights possessed by either House
40
of Parliament under the head of privilege or law and custom of Parliament. It is apt to quote
Sir Erskin May whose words echo a need for freedom of speech in Parliamentary
proceedings. “Parliamentary privilege is the sum of the peculiar rights …without which they
41
could not discharge their functions…” It is submitted humbly by the Counsels that Free
speech is inalienable for fearless discussions [3.1.1] and that immunity is imperative for
42
Parliament. For a deliberative body like a House of Parliament, freedom of speech within
43
the House is of utmost significance. In order to let the members speak up and express
38 Rosemary Righter, Freedom and “Balance”: the Global Media Controversy in RICHARD HOGGART, LIBERTY
AND LEGISLATION 161(1989).
39 UNIVERSAL DECLARATION OF HUMAN RIGHTS, art 19.
40 II JOSEPH ARNOULD, MEMOIRS OF THOMAS, FISTS LORD DENMAN 70 (1873); A.V. DICEY, AN INTRODUCTION
TO THE STUDY OF THE LAW OF THE CONSTITUTION 58 (1985); see also, Raj Narain v. Atmaram Govind, A.I.R
41 ERSKINE MAY, A TREATISE UPON THE LAW, PRIVILEGES, PROCEEDINGS AND USAGE OF PARLIAMENT
132-33 (23d edn.,2004); see also, HILAIRE BARNETT, CONSTITUTIONAL & ADMINISTRATIVE LAW 368 (2014);
SUDHANSHU RANJAN, JUSTICE, JUDOCRACY AND DEMOCRACY IN INDIA: BOUNDARIES AND BREACHES 268
(2014).
42 Geetika Sood, Parliamentary Democracy In India: Legal Issues And Challenges, 15(1) LAW AND
POLITICS 95, 101 (2017).
43 NOLAN SHUTLER, IN DEFENCE OF JOURNALISTS 223 (2011).
7
THIRD PROF. N.R. MADHAVA MENON SAARC MOOTING COMPETITION 2017-18: INDIA ROUNDS
themselves freely during the proceedings of the House, it is essential to make them get rid of
fear of any kind; the fear that they may be penalized for anything said and expressed in the
House.
[¶19] The rule of freedom of speech and debate in Parliament became established in Britain
44
in the case of Sir Jonh Eliot. The Indian Judiciary has expounded the law on privilege of
freedom of speech of Parliament as provided in Article 105 of the Indian Constitution in
45
many cases.
[¶20] It is submitted by the Counsels that as Parliament is the most sacrosanct space for the
discussion of national policies and laws, to have free and liberated discussion, it has to be
given certain privileges to ensure that the legislative process of debate and discussion goes
is proved that parliament was sitting and its business was being transacted, anything said
during the course of that business was immune from proceeding in any court”. In India, the
47
Constitution says: there shall be freedom of speech in parliament. The Rules of Procedure
of the House of People, empower the Chair to expunge any part of the proceedings of the
48
house. There is, as submitted by the Counsels, a sense of immunity to be granted to the
Members of House of People because unless such immunity is granted, they would not freely
express their views and a healthy discussion or debate would not be realised.
[3.2] Freedom of speech for debate in Parliament is protected within the House, not
outside
[¶22] Reading Article 102(i) in the light of clause (ii), there would be clear cut analysis that
what the Constitution of Eden provides for is that no report of any committee or commission
set up by Federal Government or House of People which is to be laid before the House, shall
be discussed or called into question in any court. Hence, the judicial scrutiny of such reports
is not allowed. However, the report of the Sub-committee, which was confidential in nature,
49
was discussed by Dr. ‘A’ in a press conference.
[¶23] Before the start of Monsoon Session of Parliament, Dr. ‘A’ called for a Press Conference
where he selectively highlighted the contents of the report, and selectively leaked its findings
50
as well. The facts clearly mention the details that Dr. ‘A’ had not left any stone unturned to
attract the attention of media towards the connection of the scam of the NGOs and funding by
51
Mrs. ‘K’ and Mr. ‘X’. He, in this manner breached the parliamentary privilege while
disclosing the details of the Report which had to be laid on the Table of the House.
[¶24] It is clear from a close reading of the provisions of parliamentary privilege that the
privileges are only inside the House and limited to the proceedings of the House and not
outside it. That is why whatever Dr. ‘A’ announced before the media regarding the
Parliamentary subjects of the Sub-committee are not immune from liability as they are not
[¶25] Thus, the Counsels humbly submit that as the act of Dr. ‘A’ seriously hampered the
dignity, reputation and good will of Mrs. ‘K’ and Mr. ‘X’, the actions which are levied against
him be taken into consideration and the aspect of Parliamentary Privilege and its scope be
49 ¶ 29, Page 10, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition
2017-18.
50 ¶ 28, Page 9, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
51 ¶ 29, Page 10, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
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construed in isolation from all other parts of the constitution, but should be construed as to
52
harmonize with those other parts.” It is submitted by the Counsels that democracy calls for
harmonious resolution of conflict between free speech and parliamentary privileges [3.3.1],
Press has to exercise freedom of speech and expression subject to parliamentary privileges
calling press meeting and disclosing confidential report before House proceedings [3.3.3].
[3.3.1] Democracy calls for harmonious resolution of conflict between free speech and
parliamentary privileges
[¶27] On a harmonious construction of the words of Art. 102 and the right to freedom of
speech and expression, one fact which is that if there is a conflict between the right to
freedom of speech and expression and the parliamentary privileges, weightage is given to
both harmoniously. It has to be seen that which of the rights has more impact on the social
interests. In the instant case, if a higher stance is given to the right of speech and expression,
it would be disastrous. That would clearly lead to such a State being formed where the
Any person could skip the procedures of Parliament, then, and call for a “media trial”. This
would be even more prejudicial to the sacrosanct principles of Democracy and Federalism. It
However, those freedoms are subject to reasonable restrictions. In the guise of freedom of
speech and expression, a citizen cannot go on to the extent of defaming some third person
basing his claims on such a Report which is confidential in nature and disclosure of which
52 See, eg., Raj Krushna Bose v. Binod Khanungo & others. 9 E.L.R. 294.
10
THIRD PROF. N.R. MADHAVA MENON SAARC MOOTING COMPETITION 2017-18: INDIA ROUNDS
53 54
liberties” . Many a times items published on internet violate National Laws. From the
55
yardsticks of freedom of press discussed in leading cases where it was observed by Mathew J in
56
Bennett Coleman case :“it is of no use having a right to express your idea unless you have got a
medium of expressing it.” Where we are trapped in a quagmire to decide as to what a medium of
57
expression could be to our rescue come Motion Pictures Association v. Union of India which
[¶29] Press, no doubt is the most powerful medium of information and exercise of free speech
instant case, there has been a blatant over-exercise of freedom of press. The press conference
58
which was called by Dr. ‘A’ attracted much public attention in the national as well as
international media as it involved human rights issues connected to the working of SHCG and
59
the style of functioning of Mrs. ‘K’ as well. There were pin-pointed questions which were
put forward by the media persons during the Press Conference about the role and involvement
60
of Mr. ‘X’ in the ‘Clinical trial related issue vis- a -vis SHCG financing.’ All these questions
have enough potential to breach the sacredness of parliamentary privileges and also have a
53 1 REPORT OF SECOND PRESS COMMISSION 34-35 (1982); see also, IRSHAD HIJAZI, MEDIA LAWS AND ETHICS
(1st edn., 2015)
54 See, for e.g., OFFICIAL SECRETS ACT, 1923; FOREIGN RELATIONS ACT, 1932; INFORMATION TECHNOLOGY
55 Sakal Papers(P) Ltd v. Union of India, A.I.R 1962 S.C. 305; Bennett Coleman &Co. v. Union Of India,
A.I.R 1973 S.C.106; Romesh Thappar v. State of Madras, A.I.R 1950 S.C. 124
56 Bennett Coleman &Co.v. Union Of India, A.I.R 1973 S.C.106
57 Motion Pictures v. UOI, 1995(35) DRJ 582.
58 ¶ 28, Page 9, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
59 ¶ 29, Page 10, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
60 ¶ 29, Page 10, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
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[¶30] The questions regarding involvement of Mrs. ‘K’ and Mr. ‘X’, though not answered
61
directly by Dr. ‘A’ have been discussed at length by him in the media by disclosure of
62
highlights of the confidential report. The Counsels humbly submit that the media and its
function should be restricted to an arena from where they could not breach the privileges
under Art. 102 and it is humbly submitted that the functioning and freedoms of press and
media should be subject to parliamentary privileges and this Hon’ble Court may be pleased to
about the relation of press and its freedom of speech and expression being restricted to the
parliamentary privileges in ¶ 29. Arguendo, it is humbly submitted before this Hon’ble Court
that the post of Chairman of Committees and Sub-Committees appointed by the Federal
discussions, debates etc. over the issues of such reports before they are place in the House.
These duties can be inferred from the words of Art. 102 (i) and (ii).
[¶32] In the instant case, the Chairman of Sub-committee, Dr. ‘A’ has breached the
63
confidentiality of the Report of the Sub-committee by discussing it in Press conference. The
Counsels, humbly submit before this Hon’ble Court that the Chairman of Committees or Sub-
Committees being a responsible post-holder cannot act in such a haphazard and negligent
manner. The constitutional interpretation of Art. 102 is called for in the light of Section 299-A
61 ¶ 29, Page 10, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition
2017-18.
62 ¶ 28, Page 9, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
63 ¶ 28, Page 9, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
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[¶33] As the ideal of ex visceribus actus calls not only for a concomitant reading of the
provisions of one Statute as a whole, it also calls for a reading of all such provisions in the
light of the law of the land from where they emanate. Reading such provision in the light of
Constitution of Eden, the Counsels humbly submit that this Hon’ble Court may take the issue
64 65
[¶34] Article 21 of the Constitution of Eden guarantees Right to life. Life is a human right
66
and most important of all rights. The Counsels argue that Art. 21 does not “give” a person
right to life. It “protects” and “guarantees” one’s right to life. One’s right to life is inherent to
one by virtue of our birth. The Counsels submit that reputation is sine qua non for dignified
life [4.1], Right to Reputation is a natural and personal right [4.2], Right to Reputation is
inherent in Art. 21 [4.3], Enquiry by Committees and Sub-Committees cannot surpass this
right [4.4].
68
phenomenon. Every man is guaranteed ‘inherent dignity of the human person’, and it paves
69 70
path for right to reputation. Reputation has been described as “highly prized but intangible” ,
71
“nebulous yet much cherished” and one of the few safe harbours in the law of
64 ¶ 1, Page 2, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
65
See UNIVERSAL DECLARATION OF HUMAN RIGHTS, 1948, art. 3; THE HUMAN RIGHTS ACT,1998(U.K.), art. 2.
66 The State v. T. Makwanyane and M. Mchunu, 1995(3) S.A. 391.
67 Hill v. Church of Scientology (1995) 126 D.L.R. (4th) 129.
68 Rosenblatt v. Baer 383 US 75; 86 S Ct 669 (1966).
69 DAVID ROLPH, REPUTATION, CELEBRITY AND DEFAMATION LAWS 31 (2016).
70 BALKIN & DAVIS, LAW OF TORTS (3rd edn,2004).
71 HAROLD LUNTZ & DAVID HAMBLY, TORTS: CASES AND COMMENTARY (5th edn, 2002).
13
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72 73 74
defamation”. It is “not a commodity having market value” , is man’s “property” and
75 76
“what other people think he is”. Though A.21 is couched in negative phraseology, it
77
enforces positive obligations on the state to take steps to ensure that the individual enjoys a
78 79 80
dignified life. Reputation relates to privacy of a person which is a fundamental right.
81
[¶36] The Counsels humbly cite the case of Subramaniam Swamy v. Union of India, where
the Indian Supreme Court categorically held inter alia that right to reputation is a
“fundamental right”. A good reputation is an element of “personal security” and is protected
82
by the Constitution “equally with the right to the enjoyment of life, liberty and property”.
[¶37] The European Human Rights Court has settled the conflict between freedom of speech
83 84
and expression and reputation as hampered by acts of and of associations, authors, health
85 86 87 88
workers, historians, journalists and political figures. It is “the estimate in which he is
89 90
held by the public in the place where he is known.” The international instruments , national
85
Frankowicz v. Poland, App. No. 53025/99 (Eur. Ct. H.R. Apr. 12, 2009) (HUDOC Database); Heinisch v.
Germany , App. No. 28274/08 (Eur. Ct. H.R. Jul. 21, 2011) (HUDOC Database); Ärztekammer Für Wien and
Dorner v. Austria, App. No. 8895/10, ¶ 65 (Eur. Ct. H.R. Feb. 16, 2016) (HUDOC Database).
86
Karsai v. Hungary, App. No. 5380/07, ¶ 28 (Eur. Ct. H.R. Jan. 12, 2009) (HUDOC Database); Braun v.
Poland, App. No. 30162/10, ¶ 44 (Eur. Ct. H.R. Nov. 4, 2014) (HUDOC Database); Pinto Pinheiro Marques v.
Portugal, App. No. 26671/09, ¶ 35 (Eur. Ct. H.R. Jan. 22, 2015) (HUDOC Database).
87
Radio France and Others v. France, App. No. 53984/00, ¶ 3 (Eur. Ct. H.R. Mar. 30, 2004) (HUDOC
Database); Chauvy and Others v. France, App. No. 64915/01, ¶ 3 (Eur. Ct. H.R. Jun. 26, 2004) (HUDOC
Database); Cumpănă and Mazăre v. Romania, App. No. 33348/96, ¶ 3 (Eur. Ct. H.R. Dec. 17, 2004) (HUDOC
Database); Katamadze v. Georgia, App. No. 69857/01 (Eur. Ct. H.R. Feb. 17, 2004) (HUDOC Database);
Leempoel & S.A. ED. Ciné Revue v. Belgium, App. No. 64772/01 (Eur. Ct. H.R. Nov. 9, 2006) (HUDOC
Database); Tønsbergs Blad AS and Haukom v. Norway, App. No. 510/04, ¶ 3 (Eur. Ct. H.R. Mar. 1, 2007)
(HUDOC Database); Colaço Mestre and SIC - Sociedade Independente de Comunicação S.A. v. Portugal, Apps.
No. 11182/03 and 11319/03, ¶ 3 (Eur. Ct. H.R. Apr. 26, 2007) (HUDOC Database); Lindon, Otchakovsky-
Laurens and July v. France, App. No. 21279/02, ¶ 3 (Eur. Ct. H.R. Oct. 22, 2007) (HUDOC Database); Mihaiu
v. Romania, App. No. 42512/02 (Eur. Ct. H.R. Nov. 4, 2008) (HUDOC Database); Standard Verlags GmbH v.
Austria (no. 2), App. No. 21277/05, ¶ 3 (Eur. Ct. H.R. Jun. 4, 2009) (HUDOC Database); Kuliś and Różycki v.
Poland, App. No. 27209/03 (Eur. Ct. H.R. Oct. 6, 2009) (HUDOC Database); Ruokanen and Others v. Finland,
App. No. 45130/06 (Eur. Ct. H.R. Apr. 6, 2010) (HUDOC Database); Brunet Lecomte and Lyon Mag’ v. France,
App. No. 17265/05 (Eur. Ct. H.R. May. 6, 2010) (HUDOC Database); Uj v. Hungary, App. No. 23954/10, ¶ 21
(Eur. Ct. H.R. Jul. 19, 2011) (HUDOC Database); Axel Springer AG v. Germany, App. No. 39954/08, ¶ 79 (Eur.
Ct. H.R. Feb. 7, 2012) (HUDOC Database); Tănăsoaica v. Romania, App. No. 3490/03, ¶ 52 (Eur. Ct. H.R. Jun.
19, 2012) (HUDOC Database); Smolorz v. Poland, App. No. 17446/07, ¶ 31 (Eur. Ct. H.R. Jan. 6, 2013)
(HUDOC Database); Mladina D.D. Ljubljana v. Slovenia, App. No. 20981/10, ¶ 39 (Eur. Ct. H.R. Apr. 17,
2014) (HUDOC Database); Mustafa Erdoğan and Others v. Turkey, Apps. No. 346/04 and 39779/04, ¶ 46 (Eur.
Ct. H.R. May. 27, 2014) (HUDOC Database); Axel Springer AG v. Germany (no.2), App. No. 48311/10, ¶ 51
(Eur. Ct. H.R. Jul. 10, 2014) (HUDOC Database); Stankiewicz and Others v. Poland, App. No. 48723/07, ¶ 60
(Eur. Ct. H.R. Oct. 14, 2014) (HUDOC Database); Erla Hlynsdottir v. Iceland (no. 2), App. No. 54125/10, ¶ 56
(Eur. Ct. H.R. Oct. 21, 2014) (HUDOC Database); Haldimann and Others v. Switzerland, App. No. 21830/09, ¶
49 (Eur. Ct. H.R. Feb. 24, 2015) (HUDOC Database); Hlynsdottir v. Iceland (no. 3), App. No. 54145/10, ¶ 60
(Eur. Ct. H.R. Jun. 2, 2015) (HUDOC Database); Morar v. Romania, App. No. 25217/06, ¶ 46 (Eur. Ct. H.R. Jul.
7, 2015) (HUDOC Database); De Carolis and France Télévisions v. France, App. No. 29313/10, ¶ 45 (Eur. Ct.
H.R. Jan. 21, 2016) (HUDOC Database); Bédat v.; Switzerland, App. No. 56925/08, ¶ 50 (Eur. Ct. H.R. Mar. 29,
2016) (HUDOC Database);Nadtoka v. Russia, App. No. 38010/05, ¶ 46 (Eur. Ct. H.R. May. 31, 2012) (HUDOC
Database);Dorota Kania v. Poland, App. No. 49132/11, ¶ 25 (Eur. Ct. H.R. Jul. 19, 2016) (HUDOC
Database);Dorota Kania v. Poland (no. 2), App. No. 44436/13, ¶ 62 (Eur. Ct. H.R. Oct. 4, 2016) (HUDOC
Database);Olafsson v. Iceland, App. No. 58493/13, ¶ 48 (Eur. Ct. H.R. Mar. 16, 2017) (HUDOC
Database);Milisavljević v. Serbia, App. No. 50123/06, ¶ 37 (Eur. Ct. H.R. Apr. 4, 2017) (HUDOC Database);
Koutsoliontos and Pantazis v. Greece, Apps. No. 54608/09 and 54590/09, ¶ 37 (Eur. Ct. H.R. Sept. 22, 2015)
(HUDOC Database); Ziembiński v. Poland (no. 2), App. No. 1799/07 (Eur. Ct. H.R. Jul. 5, 2016) (HUDOC
Database); Medipress-Sociedade; Jornalística, Lda v. Portugal, App. No. 55442/12, ¶ 37 (Eur. Ct. H.R. Aug. 30,
2016) (HUDOC Database); Verlagsgruppe News GmbH v. Austria, App. No. 9406/05, ¶ 42 (Eur. Ct. H.R. Dec.
13, 2016) (HUDOC Database); Kunitsyna v. Russia, App. No. 39954/08, ¶ 79 (Eur. Ct. H.R. Feb. 7, 2012)
(HUDOC Database).
88
Keller v. Hungary, App. No. 33352/02 (Eur. Ct. H.R. Apr. 4, 2006) (HUDOC Database); Kurski v. Poland,
App. No. 26115/10, ¶ 48 (Eur. Ct. H.R. Jul. 5, 2016) (HUDOC Database); Petrina v. Romania, App. No.
78060/01 (Eur. Ct. H.R. Oct. 14, 2008) (HUDOC Database); Karakó v. Hungary , App. No. 39311/05, ¶ 1 (Eur.
Ct. H.R. Apr. 28, 2009) (HUDOC Database); Petrenco v. the Republic of Moldova, App. No. 20928/05 (Eur. Ct.
H.R. Mar. 30, 2010) (HUDOC Database); Hoon v. the United Kingdom , App. No. 14832/11, ¶ 39 (Eur. Ct. H.R.
Dec. 4, 2014) (HUDOC Database); Rubio Dosamantes v. Spain, App. No. 20996/10, ¶ 27 (Eur. Ct. H.R. Feb. 21,
2017) (HUDOC Database); Haupt v. Austria , App. No. 55537/10, ¶ 31 (Eur. Ct. H.R. Jun. 1, 2017) (HUDOC
Database).
15
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91 92
laws and judgements affirm the importance of a good reputation to the dignity of the
individual. Basing their arguments on the above cited authorities and case laws, the Counsels
humbly submit before this Court that the Right to Reputation is intrinsically linked with the
dignity, self-esteem, honour, glory and eminence. More than that, it elevates a person from
the level of “human” to “human with repute, name and prestige” which make it necessary for
93
matter all the pearls of the sea” , has been held to be the “salt of life”, “the purest treasure”,
94 95
“the most precious perfume of life” and “a natural right” and is perceived as an “honour”
96
rather than “popularity”.
97
[¶39] Personal rights of a human being include the right of reputation. When a dent is
98
created in the reputation, humanism is paralyzed. A good reputation is an element of
99
personal security. The essence of dignity can never be treated as a momentary spark of light
100
or, for that matter, “a brief candle”, or “a hollow bubble”.
101
[¶40] A man's reputation is a part of himself, as his body and limbs are. Post Maneka Gandhi v.
102
Union of India , the Supreme Court expanded the phrase “personal liberty” in its interpretation
103
of A. 21 to the widest amplitude. Reputation is, the Counsels humbly submit, a personal right,
and the right to reputation is put among those absolute personal rights equal in dignity and
104
importance to security from violence. Detraction from a man's reputation is an injury to his
105
personality , and thus an injury to reputation is a personal injury, that is, an injury to an absolute
personal right. Right of personal security consists in a person's legal and uninterrupted enjoyment
106
of his life, his limbs, his body, his health and his reputation. [¶41] The right to the enjoyment
107
of a good reputation is a valuable privilege, of ancient origin, and necessary to human society
108
The Hon’ble Supreme Court has read Right to Basic Necessities into the Right to Life and
109
Liberty under A.21. This right inherently
97 Umesh Kumar v. State of Andhra Pradesh and Another, (2013) 10 S.C.C. 591.
98 Mehmood Nayyar Azam v. State of Chattisgarh, (2012) 8 S.C.C. 1.
99 D.F. Marion v. Davis 217 Ala 16 : 114 So 357 : 55 A.L.R. 171 (1927), In Board of Trustees of the Port
of Bombay v. Dilipkumar Raghavendranath Nadkarni and Others, (1983) 1 S.C.C. 124, State of Maharashtra v.
Public Concern for Governance Trust and Others, (2007) 3 S.C.C. 587.
100 Mehmood Nayyar Azam v. State of Chhattisgarh and others, (2012) 8 S.C.C. 1.
101 Kiran Bedi & Jinder Singh v. Committee of Inquiry, A.I.R. 1989 S.C. 714.
102 A.I.R. 1978 S.C. 597.
103 Pathumma and Ors.v. State of Kerala and Ors., AIR 1978 SC 771.
104 Huzra Bee v. The State of Madhya Pradesh and Others, W.P. No.9060/2017, per Hemant Gupta C.J.,
Mohammed Quadeer and others v. Commissioner of Police, 1999 (3) A.L.D. 60, Sri S. Santhanam, I.A.S. and
Anr. v. State of Andhra Pradesh rep. by Chief Secretary to Government and Ors, 1993 (3) A.L.T. 666.
105 77 CORPUS JURIS SECUNDUM 268 (Robert J. Owens et al., eds.).
106 I WILLIAM BLACKSTONE, COMMENTARY OF THE LAWS OF ENGLAND 101 (4th ed. 1899); see, also, Sri
S. Santhanam, I.A.S. And Anr. v. State Of Andhra Pradesh Rep. By Chief Secretary to Government and Ors,
1993
(3) A.L.T. 666; Om Prakash Chautala v. Kanwar Bhan, (2014) 5 S.C.C. 417.
107 Kishore Samrite v. State of U.P. & Ors., (2013) 2 S.C.C. 398.
108 Byrraju Ramalinga Raju v. The State CBI,Criminal Petition No. 5454 of 2009.
109 3 DURGA DAS BASU, COMMENTARY ON THE CONSTITUTION OF INDIA 371 (8th ed., 2008).
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110
ensures a dignified life to citizens of India, which not only entails an assurance of fulfilling
their primary needs, but also guarantees all those conditions to the citizens which make life
111 112
worth living. A.21 of the Constitution has been given a qualitative concept to Life, and
113
it safeguards the basic human rights required of every civilization.
[¶42] A life without reputation is like a house without roof, a fish without water and a plant
without roots. The very basic root of a man’s life is his goodwill, his reputation in the society.
No one wants to be bullied and called names. The Counsels humbly submit that reputation is
an important part of one’s life and as its violation affects life and person of individual, it is a
personal right. So far as it affects the person, it is his natural right as it is granted by the virtue
of his birth.
bring out a relation between reputation and liberty [4.3.1], reputation is guaranteed by
democracy [4.3.2], there is no conflict between Freedom of Speech and Right to Reputation
[4.3.3].
110 Francis Coralie Mullin v. The Administrator, Union Territory of Delhi & Ors., AIR 1981 SC 746.
111 M.P. JAIN, supra note 20 at 1309.
112 Chameli Singh v. State of Uttar Pradesh, AIR 1996 SC 1051.
113 1 JUSTICE FAZIL KARIM, JUDICIAL REVIEW OF PUBLIC ACTION 588-589 (2006).
114 State of Bihar v. Lal Krishna Advani, A.I.R. 2003 S.C. 335; Mehmood Naiyyar Azam v. State of Chattisgarh,
A.I.R. 2012 S.C. 2573; Board of Trustees of the Port of Bombay v. Dilipkumar Raghavendranath Nadkarni & Ors, (1983) 1
S.C.C. 124; Peter Thomas Mahon v. Air New Zealand Ltd & Ors., 1983 U.K.P.C. 29.
115 State Of Bihar v. Lal Krishna Advani, A.I.R. 2003 S.C. 335.
116 De Libellis Famosis, (1605) 5 Co Rep 125a; 77 E.R. 250; De Crespigny v. Wellesley, (1829) 5 Bing 392;
130 E.R. 1112; Hill v. Church of Scientology, (1995) 126 D.L.R. (4th) 129; R v. Lucas, (1998) 157 D.L.R. (4th)
423 at 456 per Cory J.; Thomas v. Canadian Broadcasting Corporation, [1981] 4 W.W.R. 289 at 339 per Disbery
J; Milkovich v. Lorain Journal Co, 497 U.S. 1; 110 S Ct 2695, 2702 (1990) (Rehnquist CJ); National Life
Insurance Co v. Phillips Publishing Inc, 793 F Supp 627, 642 n 28 (1992) (Northrop J); Lewis v. McGraw-Hill
Broadcasting Co Inc, 832 P 2d 1118, 1125 (1992) (Dubofsky J); Bernson v. Browning-Ferris Industries of
California Inc, 873 P 2d 613; 30 Cal Rptr 2d 440, 447 (1994) (Arabian J); Newman v. Delahunty, 681 A 2d 671,
687 (1994) (Piscal J); Mucci v. Dayton Newspapers Inc, 654 NE 2d 1068, 1074–1075 (1995) (Froelich J);
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The Constitutional provisions are required to be understood and interpreted with an object-
117
oriented approach and not in a narrow and pedantic sense. There should be a beneficial
these rules, the Counsels humbly submit that, the Right under Article 21 read with Article
21D would bring out the fact that Right to Reputation is inherent in the Constitutional
mandates. The rights under the above articles guarantee right to life and liberty. As, life is
enjoyed with a sound and dignified reputation, it would be apt if the Counsels submit that the
118
[¶45] Arguendo, right to liberty , as read with the right to life applying the rule ex visceribus
actus, it could be deciphered that the liberty of an individual is linked with his life and a life
119
without liberty is 'lasting' but not living' because liberty is the life line of every human
120
being.
Pressler v. Lethbridge, (1997) 153 DLR (4th) 537 at 554 per Owen-Flood J; R v. Lucas, (1998) 157 DLR (4th)
423 at 456–7 per Cory J; Howlett v. Saggers, (unreported, SC(NSW), 20783/95, Donovan AJ, 24 April 1998) at
59– 60; Guildford Transportation Industries Inc v. Wilner, 760 A 2d 580, 595 (2000) (Schwelb AJ); Nassa v.
Hook-Superx Inc., 790 A 2d 368, 374 n 12 (2002) (Flanders J); W.J.L.A.-T.V. v. Levin, 264 Va 140; 564 SE 2d
383, 396 n 8 (2002) (Koontz J); Knievel v. ESPN, 393 F 3d 1068, 1079 (2005) (Bea J (dissenting)); Ramsey v.
Fox News Network LLC, 351 F Supp 2d 1145, 1153 (2005) (Figa J); Carter-Ruck and Starte 1997, 1; Linden
2001, 683; Levine 2002, 4; George 2006, 11; See, for e.g., Australian Consolidated Press Ltd v. Ettingshausen
(unreported, CA40079/93, CA(NSW), Gleeson CJ, Kirby P, Clarke JA, 13 October 1993) at 41 per Kirby P;
Barella v. Exchange Bank, 101 Cal Rptr 2d 167, 169 (2001) (Rivera J); Nassa v. Hook-Superx Inc, 790 A 2d
368, 372 (Flanders J); Kux 2004a; Post 1986, 701; Carter-Ruck and Starte 1997, 2; Levine 2002, 4; George
2006, 11–12; Pullum v. Johnson, 647 So 2d 254, 256 n 4 (1994) (Van Nortwick J); Mucci v. Dayton Newspapers
Inc, 654 NE 2d 1068, 1074 (1995) (Froelich J). J.G. F LEMING, THE LAW OF TORTS 580 (1998); J.H. BAKER, AN
INTRODUCTION TO ENGLISH LEGAL HISTORY 437 (4th edn, 2002).
117
A.B. KAFALTIYA, INTERPRETATION OF STATUTES 341 (2008); JUSTICE G.P. SINGH, PRINCIPLES OF STATUTORY
INTERPRETATION (14th edn., 2016); Kausea v. Minister of Home Affairs, 1995 NR 175 (SC); S.R. Chaudhuri v. State
of Punjab and others (2001) 7 SCC 126; Sakal Papers (P) Ltd. v. Union of India AIR 1962 SC 171; James v.
Commonwealth of Australia (1936) AC. 578, Attorney General v. Moagi, 1981 BLR 1, Petrus and Another v.
The State,1984 BLR 14; State of Punjab v. Devans Modern Breweries Ltd
118
EDEN CONST., art. 21 D.
119 Pathooty v. State Of Kerala And Anr., 2000 Cri.L.J. 1189.
120 Ashok Kumar Alias Golu vs Union Of India And Ors, (1991) 3 S.C.C. 498.
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[¶46] Democracy implies respect for the elementary rights of men, however suspect or
121 122
unworthy. Right to self-preservation has also been recognized under Article 21.
123
Everyone has the right to life, liberty and security of person.
124
[¶47] The Supreme Court referring to D.F. Marion v. Minnie Davis in Smt. Kiran Bedi v.
125
Committee of Inquiry held that “good reputation was an element of personal security and
was protective by the Constitution, equally with the right to the enjoyment of life, liberty and
126
property. In State of Maharashtra v. Public Concern for Governance Trust , the Court held
that good reputation was an element of personal security and was “protected by the
constitution”, equally with the right to the enjoyment of life, liberty and property and that the
right equally covers the reputation of a person during and after his death. In State of Bihar v.
127
Lal Krishna Advani the Apex Court ruled that it was amply clear that one was entitled to
have and preserve one’s reputation and one also had the right to protect it.
128
[¶48] The Counsels humbly submit that Eden being a federal and democratic country,
129
follows the principles of ‘minimum government, maximum governance’ , as introduced by
130
the ruling Government which came into power in January, 2016. Under the basics of this
principle, there would be a safe inclusion of intrusion of government in the cases of violation
of fundamental rights. This would be realized by the scrutiny of the matter by the Judiciary
and the safeguards of fundamental rights, the Counsels submit, could assess the principle in a
manner better than any other source. The principle, as submitted, is not one nearing laissez
faire, rather, it is one which lets loose the nation from the eyes of government constantly
fixed over it for better and easy growth with a watchful eye over it. Under such role, the
government has a dual role of safeguarding the rights of the citizens and at the same time
137
findings/recommendations for information to the Government. It has no power to enforce
them.
[4.4.1] Inquiry by Committees and Sub-Committees does not bind the Court
131 Haridas Das v. Usha Rani Banik and others, (2007) 14 S.C.C. 1.
132 Subramaniam Swamy v. Union of India, A.I.R. 2016 S.C. 2728.
133 See Ronald Dworkin, Rights as Trumps, in THEORIES OF RIGHTS 152, 153- 67 (Jeremy Waldron ed., 1984).
134 103 Eur. Ct. H.R. (ser. A) 14, 25 (1986); Feldek v. Slovakia, 2001-VIII Eur. Ct. H.R. 91, 110; Lesnik v.
Slovakia, 2003-IV Eur. Ct. H.R. 169, 179; Radio France v. France, 2004-II Eur. Ct. H.R. 125, 148.
135 App. No. 39311/05.
136 See, Dean Spielmann & Leto Cariolou, The Right to Protection of Reputation Under The European Convention on
Human Rights, in TEISE BESIKEICIANCIOJE EUROPOJE: LIBER AMICORUM PRANAS KURIS [LAW IN
A CHANGING EUROPE: LIBER AMICORUM PRANAS KURIS] 401-424 (Saulius Katuoka ed., 2008).
137 Commissions of Enquiry Act, 1952, §4; Shri Ram Krishna Dalmia v. Shri Justice S. R. Tendolkar and others,
A.I.R. 1958 S.C. 538; State of Karnataka v. Union of India, A.I.R. 1978 S.C. 68;Kehar Singh and Anr. v. State of Delhi
Admn., A.I.R. 1988 S.C. 1883.
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[¶51] Such inquiry or report cannot be looked upon as a judicial inquiry and Courts are not
bound by such report as they have to arrive at their own decision on basis of evidence on
138
record. All discussions held during tour by the Committee, with the representatives of the
communicate to the Press or any unauthorised person, any information about matters taken
139
up during the discussions.
[4.4.2] Denial of Procedural Fairness, a good ground for review of decisions by Committee
[¶52] Denial of procedural fairness is clearly an available ground in review of decisions made
140
by non-statutory investigations. To Mrs. K, questions like salary arrangement, mode of
receipt of foreign funds, appointment of employees and staff, use and disbursement of funds
141
and role of her husband in connection with funding were asked without notice to which
142
she had complained to the Hon’ble Speaker also, but that was of no use. Biasness due to
her husband being the head of the Committee under which the Sub-committee was
constituted also cannot be ruled out. Also, the chairman of the sub-committee was from the
ruling party while she was the wife of the leader of opposition. The above incidents call for a
Committees which the Counsels humbly put forth. The basic principles of natural justice call
138 Huzra Bee v. The State of Madhya Pradesh and Others, W.P. No.9060/2017, per Hemant Gupta C.J.
139 LARRDIS/No. 11/PPR/27/04, LOK SABHA SECRETARIAT NEW DELHI APRIL, 2004.
140 Council of Civil Service Unions v. Minister for the Civil Service (GCHQ Case), [1985] AC 374; Minister for Arts,
Heritage and Environment v. Peko-Wallsend Ltd, (1987) 15 FCR 274; State of Victoria v. Master Builders’ Association of
Victoria, [1995] 2 VR 121; Community Advocate v. Gallop and Attorney-General, [2002] ACTSC 45 (unreported, Supreme
Court of the ACT, Crispin J, 30 May 2002).
141 ¶ 15, Page 6, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
142 ¶ 16, Page 6, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
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[¶53] An authority who takes a decision, which may have civil consequences and affects right
143
of a person, the principle of natural justice would at once come into play. Where a person's
good name, reputation, honour or integrity is at stake because of what the government is
144
doing to him, notice and an opportunity to be heard are essential.
[¶54] “Health is a state of complete physical, mental and social wellbeing and not merely the
145
absence of disease.” It has been amplified to include the ability to lead a ‘socially and
economically productive life’. Health ventures beyond a limited, biomedical and pathology-
based perspective to the more positive domain of “well-being”. The scope of health, by
inclusion of the role and responsibility of health professionals and their relationship to the
146
larger society, has been expanded. The Counsels humbly submit that Right to Health is a
human right [5.1], Right to health is granted by Constitution of Eden [5.2] and Interpretation
143
The State of Jammu and Kashmir & Ors. v. Bakshi Gulam Mohammad & Anr., A.I.R. 1967 S.C. 122.
144 Wisconsin v. Constantineau, 400 U.S. 433, 27 LEd. 515.
145 Kirloskar Brothers Ltd. v. Employees' State Insurance Corpn., AIR1996SC3261.
146 KUMAR AVANISH, HUMAN RIGHT TO HEALTH 21 (2007).
147 UNIVERSAL DECLARATION OF HUMAN RIGHTS, art. 25; INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL
AND CULTURAL RIGHTS, art. 12; CONVENTION ON THE RIGHTS OF THE CHILD, art. 24; CONVENTION ON THE
ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, art. 5; CONVENTION ON THE ELIMINATION OF ALL
FORMS OF DISCRIMINATION AGAINST WOMEN, arts. 12 and 14; A MERICAN DECLARATION ON RIGHTS AND DUTIES
OF MAN, art. XI (11); CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES, art. 25.
148 PREAMBLE TO CONSTITUTION OF THE WORLD HEALTH ORGANIZATION.
149 RICHARD PIERRE CLAUDE & BURNS H. WESTON, HUMAN RIGHTS IN THE WORLD COMMUNITY: ISSUES AND
ACTION 202 (2006).
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sterilization, and to be free from torture and other cruel, inhuman or degrading treatment or
150
punishment. The Counsels humbly submit on behalf of People’s Cause that Right to health of
women subjected to test hampered [5.1.1], Consent of minor women not enough [5.1.2].
151
covenants affirm the crucial role of primary health care, which addresses the main health
152
services accordingly. It stresses that access to primary health care is the key to attaining a
level of health that will permit all individuals to lead a socially and economically productive
153
life and to contributing to the realization of the highest attainable standard of health. It is
therefore submitted by the Counsels that women are guaranteed right to reproductive health
[5.1.1.1] and that right to health is recognized by national and regional instruments [5.1.1.2].
150
Right to Health, OHCHR (Sept. 28, 2017), http://www.ohchr.org/Documents/Publications/Factsheet31.pdf.
151 See, e.g., CONVENTION ON ON THE ELIMINATION OF ALL FORMS OF RACIAL DISCRIMINATION, art. 5 (e) (iv);
INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS, art. 12; CONVENTION ON THE
ELIMINATION OF ALL FORMS OF DISCRIMINATION AGAINST WOMEN, arts. 11 (1) (f), 12 and 14 (2) (b);
CONVENTION ON THE RIGHTS OF THE CHILD, art. 24; INTERNATIONAL CONVENTION ON THE PROTECTION OF THE
RIGHTS OF ALL MIGRANT WORKERS AND MEMBERS OF THEIR FAMILIES, arts. 28, 43 (e) and 45 (c);
CONVENTION ON THE RIGHTS OF PERSONS WITH DISABILITIES, art. 25; INTERNATIONAL COVENANT ON
ECONOMIC, SOCIAL AND CULTURAL RIGHTS, art. 12.
152 DECLARATION OF ALMA-ATA, art. VII.
153DECLARATION OF ALMA-ATA, art. V; see also, NITSAN CHOREV, THE WORLD HEALTH ORGANIZATION
right to education includes “access to specific educational information to help to ensure the
157
health and well-being of families, including information and advice on family planning.”
Females ranging from the age of ‘15 to 32’, who were subjected to the drugs for curing
159
infertility by manufacturing companies which approached the SHCG headed by Mrs. ‘K’ ,
were deprived of their basic human right of reproductive health and were subjected to such an
experiment where the involvement of SHCG with the experimentation process was not
publically known. The Counsels humbly submit before this Hon’ble Court that as Right to
Health, which is a human right as submitted in ¶55 and a fundamental right as submitted in
¶61, makes the act of administration of experimental drugs to females with respect to ‘cure of
160
infertility’ an action violative of such rights. The Counsels humbly submit that the Right to
health be interpreted as a basic human and fundamental right encompassing within its arena
right to control one’s health and body and to be free from interference free from torture
and from non-consensual medical treatment and experimentation as discussed in ¶54 . The
161
consent of females who were aged between 15 and 32 years would not be enough. This
age group consists of a section of females who are still minor and incompetent to give
their consent for such administration of drugs. Furthermore, there have been no evidences
162
were complaints of serious side-effects. The direction to work under Eden Council of
Medical Research was also not found. This loophole in law would subject many other
[¶60] The Counsels, thus, submit before this august Court that the Constitutional
within its ambit the criteria for consent of subjects of medical experiments.
170
India imposed duty on state to ensure health and well-being.
161 ¶ 17, Page 7, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
162 ¶ 20, Page 7-8, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
163 EDEN CONST., art. 21 H.
164 Sunil Batra v. Delhi Administration, A.I.R. 1978 S.C. 1675.
165 India Const., art. 21.
166 State of Punjab v. M.S. Chawla, A.I.R. 1997 S.C. 1225.
167 Vincent v. Union of India, A.I.R. 1987 S.C. 990.
168 Consumer Education and Research Centre v. Union of India, A.I.R. 1995 S.C. 922.
169 Narmada Bachao Andolan v. Union of India, (2000) 10 S.C.C. 664; A.P. Pollution Control Board (2) v. Prof. M.V.
Nayudu, (2001) 2 S.C.C.. 62; State of Orissa v. Govt. of India, (2009) 5 S.C.C. 492; M.K. Balakrishnan
(1) v. Union of India, (2009) 5 S.C.C. 507; M.K. Balakrishnan (2) v. Union of India, (2009) 5 S.C.C.. 511.
170
INDIA CONST., art. 39 cl. E r/w arts. 41, 42 and 47.
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171
Even Panchayat and Municipalities are liable to improve and protect public health. There
172
are other mandates which indirectly are related to right to health.
[¶63] Right to live with human dignity includes right to good health and that it was an integral
173 174
factor of a meaningful right to life. The State has a duty to further these rights. A
175 176
reliance on international instruments hint that right to health is a fundamental right. The
Counsels submit that medical facilities are part of social security.
[5.2.1] Art. 21 H (b) and (c) to be read harmoniously with clause (a); no capitalisation of
health care
[¶64] The rule of harmonious construction is the thumb rule to interpretation of any
statute. An interpretation which makes the enactment a consistent whole, should be the
aim of the courts and a construction which avoids inconsistency or repugnancy between
[¶65] A harmonious construction of clauses (b) and (c) under Art. 21 H would lead to a
conclusion that the actions of NGOs and VOs which indulge in activities which are adverse to
the health and security of people, for profit, would come under the scanner of the
Constitutional mandates. The nod given by the Government to the two drug manufacturing
177
companies would be rendered unconstitutional and against the spirit of the rights under
Art. 21 H. The State is under the obligation to provide for health care by itself or by
endeavours like partnership or that of citizens. However, on a reading of clause (b) with
176 CESC Ltd. v. Subash Chandra Bose, A.I.R. 1992 S.C. 573; Dr. Aditya Shrikant Kelkar and Others v. State of
Maharashtra and Others, 1998 (4) Bom.C.R. 16; Naz Foundation v. Government of NCT and ors., 160 (2009) D.L.T. 277;
Employees' State Insurance Corporation and Ors. v. The Workmen of ITI Ltd. and Ors., I.L.R. 1997 Kar. 1433; Seenath
Beevi v. State of Kerala, 2003 (3) K.L.T. 788; Praveen Rashtrapal, I.R.S. (Retd.) v. Chief Officer, Kadi Municipality and
ors., (2006) 3 G.L.R. 1809; M/S. Meenakshi Pharma Distributors, Bangalore v. State of Karnataka and Others, 1999 (2)
Kar.L.J. 164; Society for Cancer in Oral-cavity Prevention Through Education, Hyderabad v. Union of India and ors., 2002
(3) A.L.T. 579.
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clause (c), it is also found that those companies, corporations or partnerships which are
engaged in making drugs etc. are under an obligation not to capitalize the function of
providing healthcare. This applies equally to NGOs and VOs. The Counsels submit that the
care means that hospitals, clinics, medicines, and doctors’ services must be accessible,
available, acceptable, and of good quality for everyone. Access to health care must be
universal, affordable and comprehensive. The health care system must be open with regard to
information, decision-making, and management which was clearly absent in the instant
182
case. Furthermore, even the order by this Hon’ble Court, dated 10.04.2016 has in a
categorical language called for initiation of actions against such NGOs and VOs which
183
misappropriate fund and maintain no transparency.
[¶67] A liberal interpretation is made of the term ‘Provided by law’, under Art. 21 H (c), to
make it synonymous with ‘Due process’, is necessary when it comes to protect individual
rights. In India, too, the Judiciary held that ‘Procedure established by law’ within the meaning
of Article 21 must be ‘right and just and fair’ and ‘not arbitrary, fanciful or oppressive’
otherwise, it would be no procedure at all and the requirement of Article 21 would not be
184
satisfied. It is submitted by the Counsels that the ‘procedure established by law’ has
the concerned body is valid if it has followed the correct procedure. The court would assess
that whether there is law or not, whether the Legislature is competent to frame the law and
whether it had followed the procedure laid down to legislate and would mean that a law duly
enacted is valid even if it is contrary to principles of justice and equity. This would raise the
[¶69] The Counsels humbly submit that to avoid this situation, this Court may be pleased to
stress over the importance of due process of law which not only checks if there is a law to
deprive the life and personal liberty of a person, but also sees if the law made is fair, just and
not arbitrary. This doctrine provides for more fair treatment of individual rights.
[5.3.2] NGO and its collaboration with the drug making companies not an act of law
[¶70] In Indian Constitution, the words used are “procedure established by law” where the
186
acceptance. Procedure established by law meant the procedure established by a
187 188
legislature. A reference to the Indian Constitution, law includes any Ordinance, order,
bye law, rule, regulation, notification, custom or usages and laws passed or made by
Legislature or other competent authority. The then Government of Eden had “in principle”
permitted the drugs manufacturers to carry out experimentations subject to supervision by the
189
Eden Council of Medical Research. However, the permission was not supported by some
Rules, Regulations or other matters involved in the definition of law. The Counsels humbly
submit that the act of granting permission by the Government was not an act of law.
PRAYER
Wherefore in the light of the issues raised, arguments advanced and authorities cited, it is
humbly prayed that this Hon’ble Court may be pleased to adjudge and declare:
1. That Right to Parliamentary Privileges is an absolute right and that Article 102(ii)
21 D and 21.
AND PASS ANY OTHER ORDER OR DIRECTION THAT THIS HON’BLE COURT MAY DEEM FIT IN
THE INTERESTS OF JUSTICE, EQUITY AND GOOD CONSCIENCE.
189 ¶ 17, Page 6, STATEMENT OF FACTS, Prof. N.R. Madhava Menon SAARC Mooting Competition 2017-18.
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