Participant Code……..…..

INTERNAL MOOT COURT COMPETITION, 2013

Association for Protection of Personal Liberties & Ors. ……….Petitioners

Versus
Union of Royalsthan……………Respondent

Written Response to the Petition filed by Association for Protection of Personal Liberties &
Ors.

MEMORIAL FOR THE RESPONDENT

Memorial for the Respondent

 TABLE OF CONTENTS

TABLE OF CONTENTS

 LIST OF ABBREVIATIONS - - - - - - 2

 INDEX OF AUTHORITIES - - - - - - 4
 BOOKS AND COMMENTARIES - - - - - 4
 CASES CITED - - - - - - - - 5
 ACTS, RULES AND INSTRUCTIONS- - - - - 7
 REPORTS OF COMMITTEES- - - - - - 7
 DICTIONARIES- - - - - - - - 7
 STATEMENT OF JURISDICTION - - - - - 8
 STATEMENT OF FACTS - - - - - - 9
 QUESTIONS PRESENTED - - - - - - 10

 SUMMARY OF PLEADINGS - - - - - - 11
 PLEADINGS AND AUTHORITIES - - - - - 12

 PRAYER - - - - - - - 23

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 LIST OF ABBREVIATIONS

LIST OF ABBREVIATIONS

1. &: And
2. A.P. : Andhra Pradesh
3. AIR: All India Reporter
4. All. : Allahabad
5. Art. : Article
6. Bom. : Bombay
7. Cal. : Calcutta
8. Co. : Company
9. Corp. : Corporation
10. Cri. : Criminal
11. Cri. L.J./ Cr L.J. : Criminal Law Journal
12. DB : Division Bench
13. Del. : Delhi
14. Dr. : Doctor
15. Ed./ Edn. : Edition
16. Gau. : Gauhati
17. Guj. : Gujarat
18. HC : High Court
19. Hon’ble: Honourable
20. Kar: Karnataka
21. Ker: Kerala
22. Lah. : Lahore
23. Ltd.: Limited
24. M. P. : Madhya Pradesh
25. Mad. : Madras
26. N.C.T. : National Capital Territory
27. Nag. : Nagaland
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 LIST OF ABBREVIATIONS

28. No. : Number

29. NOC :Notes On Cases
30. Ori. :Orissa
31. Ors. : Others
32. p. : Page
33. pp. : Pages
34. Punj. : Punjab
35. Pvt. : Private
36. Raj. : Rajasthan
37. SC: Supreme Court
38. SCC: Supreme Court Cases
39. SCR: Supreme Court Reports
40. Sec. : Section
41. Supp. : Supplementary
42. T.N: Tamil Nadu
43. U.P. : Uttar Pradesh
44. US/USA: United States of America
45. v. : Versus
46. Vol. : Volume

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 INDEX OF AUTHORITIES

INDEX OF AUTHORITIES

BOOKS AND COMMENTARIES

1. Arvind P Datar, Commentary on the Constitution of India, Vol I, II & III, Second Edition
2001, Wadhwa & Company Nagpur.
2. Chaudhari & Chaturvedi’s Law of Fundamental Rights, Fourth Edition, Reprint 2007,
Delhi Law House.
3. Chaudhari’s Law of Writs, Fifth Edition 2003, Law Publishers (India) Private Limited.
4. Dr. J. N. Pandey, Constitutional Law of India, Forty Fourth Edition 2007, Central Law
Agency.
rd
5. Dr. R.G Chaturvedi’s, Law of Writs and Other Constitutional Remedies, 3 Ed., Bharat
Publications Ltd.
6. Durga Das Basu, Law of the Press, (4th Ed. 2002), Wadhwa Nagpur.
7. Durga Das Basu, Shorter Constitution of India, Thirteenth Edition, Reprint 2006,
Wadhwa Nagpur.

8. G Ramachandran, Law of Writs, Vol I & II, Sixth Edition, Eastern Book Company.
9. H. M. Seervai, Constitutional Law of India, Vol 1 & 2, Fourth Edition, Reprint 2006,
Universal Law Publishing Company.
10. Justice B L Hansaria’s Writ Jurisdiction, Third Edition, Reprint 2006, Universal Law
Publishing Company.
11. Liberty, Equality & Justice: Struggles for a New Social Order, Edited by S. P. Sathe &
Sathya Narayan, First Edition 2003, Eastern Book Company Pvt. Ltd.

12. M P Jain, Indian Constitutional Law, Fifth Edition, Reprint 2003, Wadhwa & Company
Nagpur.

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 INDEX OF AUTHORITIES

13. M.N Kaul & S. L Shakdher, Practice and Procedure of Parliament, 6th Ed., Lok Sabha
Secretariat, Metropolitan Books Co. Pvt. Ltd.
14. P Ishwara Bhat, Fundamental Rights: A Study of their Interrelationship, First Edition
2004, Eastern Law House.

15. P M Bakshi, The Constitution of India, Ninth Edition 2009, Universal Law Publishing
Company.
16. Sebastian Paul, Forbidden Zones: Law and the Media, 2010, Lavanya Books, Cochin.
17. Subhash C. Kashyap, Parliamentary Procedure- Law, Privileges, Practice and
Precedents, statement of facts, Vol. 1, Universal Law Publishing Co. Pvt. Ltd.
18. WILSON, Cases and Materials on Cosntitutional Law, 1966.
19. V N Shukla, Constitution of India, Tenth Edition, Reprint 2003, Eastern Book Company.

CASES CITED

1. A.K Gopalan v State of Madras, AIR 1950 SC 27.

2. Keshavananda Bharathi v State of Kerala, AIR 1973 SC 1461.
3. Minerva Mills v Union of India, AIR 1980 SC 1789.
4. Tilokchand and Motichand and Ors. v H.B. Munshi and Anr., AIR 1970 SC 898.
5. G. Bassi Reddy v. International Crops Research Institute, (2003) 4 SCC 225.
6. State of Uttaranchal v Balwant Singh Chaufal and Ors., AIR 2010 SC 2550.
7. State of Haryana and Ors. v Mahabir Vegetable Oils Pvt. Ltd.,
8. O.K.Ghosh v E.X. Joseph, (1962) II LLJ 615 SC.
9. The Chief Inspector of Mines and Anr. v Lala Karam AIR 1961 SC 838.
10. Smt. Indira Gandhi v Raj Narain, AIR 1975 SC 2299.
11. Pravin Kumar Lal Chand Shah v State, 1982 Cr. LJ 763.
12. Maneka Gandhi v Union of India, AIR 1978 SC 597.
13. ADM Jabalpur v Shivakant Shukla , AIR 1976 SC 1207.
14. Ram Jethmalani v Union of India, (2011) 8 SCC 1.
15. Olga Tellis v Municipal Corporation, Bombay, AIR 1986 SC 180.
16. M C Mehta v Union of India, (1997) 8 SCC 770.
17. Gullapali Nageshwar Rao v State of Andhra Pradesh, AIR 1959 SC 308.
18. Ashok Kumar Yadav v State of Haryana, AIR 1984 SC 1572.

ACTS, RULES AND INSTRUCTIONS

1. Code of Criminal Procedure, 1973

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 INDEX OF AUTHORITIES

2. Constitution of India
3. Supreme Court Rules, 1966
4. Supreme Court Procedure and Practice Information Handbook

DICTIONARIES

1. Black's Law Dictionary, (8th ed. 2004)

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 STATEMENT OF JURISDICTION

STATEMENT OF JURISDICTION

The respondent, Union of Royalsthan, hereby submits its written response to the petition
filed by the petitioners, Association for Protection of Personal Liberties & Ors. The
Hon’ble Supreme Court of Royalsthan does not have the jurisdiction to adjudicate the
instant case.

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 STATEMENT OF FACTS

STATEMENT OF FACTS

-I-
Royalsthan, a Federal Republic, has a written Constitution identical to India. Due to pluralism
present among its federating units and conflicting interests, isolated upsurgings against the
country were experienced in certain parts. Neighbouring countries, some of which were ‘troubled
states’, engaged in deeds that challenged Royalsthan’s sovereignty. Royalsthan however, always
showed a soft approach to both inside and outside developments, owing to its international
position as a peaceful country and a high degree of constitutional protection to personal freedom.
-II-
However when things went out of control, the Union Government declared national emergency.
All individual rights capable of suspension were suspended. In certain areas, upsurgings were
beyond police control and the defence was given charge. In two such areas, Executive
Magistrates were forced to use excessive powers in order to restore normalcy. The Union
Government simultaneously made amendments to the Constitution. Article 32 was deleted and
an explanation was added to Article 21, stating that the phrase 'procedure established by law'
would take its literal meaning and it should not be read as 'due process of law'.
- III-
Several petitions before High Courts and the Supreme Court challenged the grant of powers to
defence forces, use of excessive powers by Executive Magistrates and Amendments to Articles
32 and 21. The Courts were reluctant to entertain these during the emergency, however after the
emergency was lifted, the petitions resurfaced. Since the procedural rules on filing before the
Supreme Court were not changed in tune with the Amendment, the Court’s Registry accepted
petitions filed by the Association for Protection of Personal Liberties and others. Various High
Courts where similar petitions were filed took a view that since identical matters were already
pending before the Supreme Court they will either wait for the verdict or will permit petitioners
to withdraw the petition and file them before the Apex Court. Certain petitioners took a view that
High Courts should decide the matter because the Apex Court did not have power to entertain
such petitions directly. Accordingly, some High Courts began hearing the matters whereas some
others adjourned them. The present petition filed by the Association for Protection of Personal
Liberties and others is before a 2 judge bench of this Hon’ble Court for adjudication.

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 QUESTIONS PRESENTED

QUESTIONS PRESENTED

1. Whether the Amendment deleting Article 32 of the Constitution is constitutional and

whether the present writ petition is maintainable?
1.1 Whether the amendment deleting Article 32 is constitutional?
1.2 Whether the present writ petition is maintainable?

2. Whether the Amendment adding an explanation to Article 21 of the Constitution is

constitutional?
2.1 Whether the present Amendment to Article 21 answers the intention and purpose with
which the said article was introduced?

3. Whether the decision to grant control of certain areas to the defence forces and the
use of powers in excess of their position by the Executive Magistrates are legal?
3.1 Whether the Amendment to Article 21 and the decision to hand over power to the
defence forces and the exercise of excessive powers by the Executive Magistrates is
related?
3.2 Whether the granting of power to defence forces is legal?
3.3 Whether the use of excessive powers by the Executive Magistrates is legal?

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 SUMMARY OF PLEADINGS

SUMMARY OF PLEADINGS

1. The present writ petition under Article 32 is not maintainable and the Amendment
deleting Article 32 is Constitutional.

Firstly, the deletion of Article 32 by an Amendment to the Constitution of Royalsthan is

constitutional. The amendment is not barred under Article 13 (2) even though it deletes a
fundamental right since “amendment” is not “law” within Article 13 (1). The petitioner and other
aggrieved persons can still approach the High Courts under Article 226 on all matters of
violation of fundamental rights, since the courts enjoy concurrent jurisdiction. On all important
and substantial questions of law, the petition will be heard by the highest court of the land,
through the process of appeal, special leave or suo moto transfer by the court itself, all of which
are available even post the amendment. The amendment was in fact made to save precious
judicial resources and allow the Apex Court to hear only substantial questions after consideration
by a lower forum. The Supreme Court of India on several cases commented on the numerous
frivolous petitions that have arisen in the garb of Public Interest Litigation. There already exists
a provision that allows the suspension of Article 32 during an emergency which suggests that the
article is not by itself indispensible. Also, there are no mala fides on the part of the Parliament
that stands proved based on the facts of the case and hence even the present amendment enjoys
the presumption that is cast in favour of all acts of the Parliament.
Secondly, as a direct result of the amendment being constitutional, the petitioner has lost its
locus standi to approach this Hon’ble Court and the petition is not maintainable.

2. The amendment adding an explanation to Article 21 is Constitutional.

The Amendment that added an explanation to Article 21 that allows the phrase “procedure
established by law” in its literal sense is constitutional, along with the fact that it must not be
read as “due process of law”. The constitution framers deliberately avoided the connotations of
the American due process clause in the phrase “procedure established by law” and the present

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 SUMMARY OF PLEADINGS

amendment gives effect to the same. Two, Article 21 is not “sole repository of rights”. The
presence of Articles such as 14, 19, 20 and 22, along with the amended 21 are sufficient to
safeguard different aspects of personality. The Indian experience brings to light the fact that
through an expanded interpretation of Article 21 than what was intended when it was framed, the
courts in that country have read the article along with Directive Principles of State Policy under
Part IV and made the latter indirectly enforceable. This has taken away the power of discretion
available to the State under Part IV when implementing such directions after analysing the
economic, social and political situations. Ultimately a serious imbalance has been caused and the
present amendment only tries to avert the same. Hence, it is submitted that the amendment to
Article 21 is valid.

3. The empowering of defence forces is not justified in law and the Executive
Magistrates’ use of excessive powers is not warranted.

Circumstances warranted the decision of the Union Government allow defence forces to take
control of certain areas. Facts clearly indicate that the police machinery had failed to contain the
situation and a period of emergency, a period of real threat to public order existed, when the said
decision was made. Further, the use of powers in excess of their positions by the Executive
Magistrates is once again legitimate since, as in the factual matrix, these were areas which
reeling under the emergency. The concerned Magistrates were “forced” to use excessive powers
and thus it was not voluntarily initiated to cry foul. This assertion, it is submitted, is also backed
by the fact that normalcy was once again restored and the emergency was lifted once the
situation was under control, without unnecessary prolonging.
It is also not an uncommon practice in countries like India to hand over power to defence forces
during emergencies. This is testified by enactments such as the Defence of India Act, 1962 and
the Civil Defence Act, 1968. Therefore it is submitted that the actions of the Executive
Magistrates and the control by the defence forces complies with the “procedure established by
law” under the Article 21 of the Constitution and are valid.

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 12

PLEADINGS AND AUTHORITIES

I. DELETION OF ARTICLE 32 IS VALID AND THE WRIT PETITION IS NOT

MAINTAINABLE.

Before proceeding to substantial submissions, it is presented at the outset that the

maintainability of the writ petition and the validity of the Amendment deleting Article 32 of the
Constitution of Royalsthan are addressed simultaneously. This is because the respondent deems it
pertinent to submit about these inter-related matters together. Maintainability can only be
established or disproved after the fate of the amendment is decided, whether Article 32 would
stand as part of Part III of the Constitution or not. Hence, the following submissions are in order.

I.1 Deletion of Article 32 of the Constitution of Royalsthan is constitutional.

During the pendency of emergency in the country of Royalsthan, the Parliament thought it
fit to carry out certain amendments to the Constitution, one among which was the deletion of
Article 32. The Constitution of Royalsthan is identical to that of India and therefore, the
arrangement of Articles must be identical1. Prior to the amendment, the rights guaranteed under
Part III could be enforced through Article 32 in this Hon’ble Court. Post the amendment, this
remedy is no longer available. It is the case of the respondent that such an amendment is valid
due to the following reasons:

Before proceeding to consider the substantial reasons that validate the amendment, it is
important to clarify an important question of law that could possibly act as a preliminary reason
to reject the amendment i.e. whether any “law” could be inconsistent with Part III as provided for
in Article 13 (2)? On this point, it is submitted that Thirdly, the view that every Amendment is a
‘law’ as held in the case of A.K Gopalan v State of Madras2, is no longer tenable in India post the
decision in the Fundamental Rights case3. In the latter case the Apex Court consisting of 13
1 Fact Sheet, para 1.
2 AIR 1950 SC 27.
3 AIR 1973 SC 1461.

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 13

judges categorically held that an amendment for the purposes of Article 13 (1) is not law and
therefore, Article 13 (2) does not apply to such acts of Parliament. A distinction was sought to be
drawn in that case between the ordinary legislative power of the Parliament under which
enactments are passed and the Constituent power of the Parliament under which Amendments
are carried out to the Constitution. This supposition is also affirmed in the form of Article 368 (3)
which states that Article 13 is inapplicable to any act carried out under the former Article.
Following the 1973 decision, Indian Courts have consistently held that an Amendment is not law
and can alter Part III.4 Borrowing from the above submissions, it the case of the respondent today
that the same position is applicable to the interpretation of the Constitution of Royalsthan and the
said amendment deleting Article 32 is valid.

Firstly, historically speaking, with particular reference to Indian history and that portion of
it behind the framing of Article 32, it is submitted that that real intention of the framers was that
Article 32 could be suspended in times of need by the Parliament in its prudence and the
incorporation of Article 32 (4) which allows such suspension is testimony on the point. This is in
so far as suspension of the Article is concerned, which by itself is proof to the fact that Article 32
is not indispensible. Else, while providing for a blanket ban on suspending Articles 20 and 21,
Article 32 could have also been mentioned.

Secondly, it is submitted that even after the amendment, the remedy under Article 226 is
still available to the petitioner. In all matters, High Courts and the Supreme Court enjoy
concurrent jurisdiction.5 The said provision is wider than Article 32 in terms of granting
discretionary remedies.6 Therefore, an argument that the petitioner is left remediless or that the
doors of this Hon’ble Court are closed at all times to the petitioner is futile.
Despite the amendment, on all important questions of law, the Hon’ble Supreme Court’s
assistance as the highest court of the land is still available. A provision for appeal from civil
suits7 and criminal matters8, the court being suo moto empowered to transfer to itself any matter
from a lower court or one or more high courts 9 and the provision for special leave to the court10 is
always present. In fact, it is submitted that this measure, the amendment, will provide the much
4 Minerva Mills v Union of India, AIR 1980 SC 1789.
5 Tilokchand and Motichand and Ors. v H.B. Munshi and Anr., AIR 1970 SC 898.
6 G. Bassi Reddy v. International Crops Research Institute, (2003) 4 SCC 225.
7 Article 133, Constitution of Royalsthan.
8 Article 134, Constitution of Royalsthan,
9 Article 139A, Constitution of Royalsthan,
10 Article 136, Constitution of Royalsthan,

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 14

required relief to the Apex Court from entertaining a large number of original suits, which could
have been settled at the lower. It would also give the Apex Court more time to attend to equally
important issues, while still satisfying the maxim that wherever there is a legal right, there is a
remedy.11 Therefore, the guarantees under other articles of Part III are still kept alive, despite the
removal of Article 32.

Thirdly, the act of deleting a fundamental right like Article 32 from the constitution is in
furtherance of a policy decision of the Government, done in good faith to relieve unnecessary
burden on this Hon’ble Court. Relying on several Indian cases, especially in the form of Public
Interest Litigation (hereinafter referred to as ‘PIL’), the Courts themselves have pointed out that
it has to deal with several false and frivolous petitions leading to loss of time and valuable
resources, where it could be handled cases on substantial questions of law.12 Thus, it is
respectfully submitted that the present case largely being in furtherance of a bona fide policy
meant to benefit the people and the courts, should not be questioned in a court of law.13

Fourthly, as there have been no proven mala fide intentions on part of the Union
Parliament in deleting Article 32, the presumption in favour the acts of the Parliament 14 should
be available to the Parliament’s acts in this context as well.

Hence, due to the aforementioned reasons, it is respectfully submitted before this Hon’ble
Court that the Amendment deleting Article 32 is intra vires the Constitution and valid.

I.2 Petitioner lacks the requisite locus standi to approach this Hon’ble Court and the

petition is not maintainable.

Prior to the Amendment, Article 32 of the Constitution provided a platform to directly

approach the Supreme Court for the enforcement of fundamental rights. However, post the
amendment and in view the reasons behind it as justified above on the validity of the deletion of
Article 32, the said Article can be taken out of the Constitution. Therefore, it is humbly submitted
before this Hon’ble Court that the petitioner in the instant case, Association for Protection of

11 J.D.B. Mitchill, Constitutional Law, 3rd Edition, 1968, p.54.

12 State of Uttaranchal v Balwant Singh Chaufal and Ors., AIR 2010 SC 2550.
13 State of Haryana and Ors. v Mahabir Vegetable Oils Pvt. Ltd.,
14 O.K.Ghosh v E.X. Joseph, (1962) II LLJ 615 SC.

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 15

Personal Liberties (hereinafter referred to as “APPL”), can no more approach this Hon’ble
forum.

Locus Standi in Latin refers to a ‘place of standing’ and it is defined as the right to bring an
action or to be heard in a ‘given forum’.15 When the right to approach the given forum in itself is
taken away, the petitioner APPL no longer has the required locus standi to approach this Court
for relief under Article 32.

The fact the Hon’ble Supreme Court’s Registry accepted the petitions file by APPL and
others since the corresponding Supreme Court Rules have not been amended cannot be an
argument raised to support the jurisdiction of the Court. This flows from the general rule of
statutory interpretation that when the main Act is repealed, the rules framed under it would
automatically stand repealed16 and a separate enactment or proclamation to this effect is not
necessary.
Further it is submitted that no person can approach the court under a previously deleted
article, questioning its deletion. An illustrative argument is used in this behalf. In the Indira
Gandhi v Raj Narain case17, the petitioner questioned the validity of an amendment that inserted
a constitutional provision that disallowed the election of the prime minister from being
challenged in a court of law, whereas the petitioner was before the Apex Court to challenge the
very same election. Here, the difference is that when the petitioner petitions a court to decide the
validity of a certain law which deletes and article and if the same petition is for the enforcement
of right under a certain provision that is non-existent. The former is maintainable, while the latter
may not be in all cases.

Additionally, the above views have been supported in the instant situation by some High
Courts as well. As indicated by the fact sheet, certain High Courts post the emergency, have
begun hearing the similar cases on the same matters by conceding to the views of some
petitioners that the Hon’ble Apex Court no longer has the jurisdiction to entertain such original
suits under Article 32.

15 Black's Law Dictionary, (8th ed. 2004) at p. 952.

16 The Chief Inspector of Mines and Anr. v Lala Karam Chand Thapar etc., AIR 1961 SC 838.
17 AIR 1975 SC 2299.

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 16

Hence, it is humbly submitted that this petition is not maintainable and the petitioner does
not have the requisite locus standi to approach this Hon’ble forum.

II. THE AMENDMENT ADDING EXPLANATION TO ARTICLE 21 IS

CONSTITUTIONAL.

For the purpose of this submission, since the Constitutional provisions of the countries of
Royalsthan and India are identical, a logical corollary is drawn as regards the development of
case laws regarding the Article in question. This comparison is supported by the very amendment
that added the explanation to Article 21, which it can be reasonably assumed was necessitated
due to certain judicial interpretations.

II.1.1 The stipulation of reading the phrase “procedure established by law” in its
literal meaning gives effect to the intention of Constituent Framers and purpose
of article.

Article 21 protects the life and liberty of an individual by providing that no person shall
be deprived of his life or personal liberty except according to procedure established by law. 18 On
the other hand, the phrase “due process of law” has been borrowed for the purpose of usage from
the V Amendment to the American Constitution wherein the phrase was inserted.

It is submitted that the amendment of this right can stand the test of applicable laws and
the reasons for the same are enumerated as under.

The Royalsthan Constitution like the Indian Constitution does not expressly use the due
process clause. Article 21 of the Royalsthan Constitution guarantees that the right to life and
personal liberty which can be deprived only through “procedure established by law”. In the
instant case, an amendment has added an explanation which requires the courts to read the phrase
in its literal sense and also states that the connotations of the due process clause are inapplicable

18 Pravin Kumar Lal Chand Shah v State, 1982 Cr. LJ 763.

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 17

to the said Article. It is submitted that the said amendment is tenable law as is substantiated
below.

Firstly, from a historical perspective, it is amply clear that the new amendment reinstates
the original purpose with which Article 21 was inserted in the Constitution. Constituent
Assembly debates indicate that Dr. B.N Rau, who was largely responsible for envisaging the said
Article, was convinced after his discussions with Frankfurter J of the United States, that the due
process clause must specifically not be incorporated since from the experience of the United
States, the clause was ultimately abused by giving too wide a meaning. In this context it is
submitted that the Assembly Debates are an accepted source of interpretation and are admissible
in order to prove the intention of the framers.19 Moreover, it is also suggested in American
jurisprudence that the due process clause is a package or a bundle of several rights, whereas the
Indian courts, particularly after the 1978 decision20, confined it only to Article 21, thereby
expanding its scope to beyond what was envisaged.

Secondly, in consistence with the intention of the Constitution framers, the initial
interpretation given to the phrase “procedure established by law” was akin to the effect the new
amendment has sought to create. In A.K Gopalan v State of Madras21 the a six judge bench of the
Supreme Court of India held that “law” under Article 21 was to be interpreted as “lex” and it is
submitted that this is the correct view to be taken. Further it is submitted most humbly that the
decision of a larger bench in Maneka Gandhi v Union of India22 where this interpretation was
replaced with “jus” has only resulted in furthering confusion and chaos.

Thirdly, it is submitted that the other Articles under Part III of the Constitution such as
Articles 14, 19, 20 and 22, along with the presently amended Article 21 cover different facets of
the personality and are sufficient for its protection. As rightly opined by Khanna J. in his
dissenting opinion in ADM Jabalpur v Shivakant Shukla23Article 21 is not the sole repository of
rights. In the Indian context however, due to expansive interpretation afforded to a single Article,

19 Supra n. 3.
20 Maneka Gandhi v Union of India, AIR 1978 SC 597.
21 Supra n 2.
22 Supra n 21.
23 AIR 1976 SC 1207.

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 18

Article 21, almost all rights related to an individual such as right to privacy 24, to livelihood25, to
go abroad,26 to a clean and safe environment27 and the like have been envisaged under one
umbrella. It is submitted humbly that such undue burden on any one Article will only render the
rest of the fundamental rights unnecessary. If all rights could be brought under the same article,
the utility and emphasis on other articles will be lost.

The respondent respectfully submits that the Indian courts, while including the
requirement that not only does the executive need to follow the procedure established by any
valid law in order to deprive life or liberty of a person, but that such a law in itself must be just
and reasonable, with the best of intentions has propelled an era of imbalance. As submitted in the
previous point, several rights came to be included under the expanded Article 21 and several
Directive Principles of State Policy which are only directions to the State, were made
enforceable indirectly. Thus, the discretion available to the State under Part IV to judge its own
social and economic capabilities before deciding to give effect to any of the directive principles 28
through policies has in one sense been taken over by the courts. The courts have in fact created a
jurisprudence that is far ahead of the social and practical realities of the State in certain areas,
which has only given rise to newer conflicts.

Finally, as submitted above in the context of deletion of Article 32, an amendment is not
law and therefore, Article 13 (2) is inapplicable in the present issue. Also the general
presumption available in favour of an act of the Parliament has neither been disproved by the
facts at hand nor has been rebutted and proved to the contrary by the petitioners as smacking of
mala fides.

Thus, in the view of the above, it is submitted that the amendment to Article 21 is intra
vires the constitution and is valid.

24 Ram Jethmalani v Union of India, (2011) 8 SCC 1.

25 Olga Tellis v Municipal Corporation, Bombay, AIR 1986 SC 180.
26 Supra n 21.
27 M C Mehta v Union of India, (1997) 8 SCC 770.
28 Articles 36 and 37, Part IV, Constitution of India (& Royalsthan).

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 19

III. GRANT OF CONTROL OF AREAS TO DEFENCE FORCES AND EXCESSIVE

USE OF POWERS BY THE EXECUTIVE MAGISTRATES ARE ILLEGAL.

III.1 Relation between actions of defence forces, executive magistrates and

amendment to Article 21.

Initially, it is submitted that the present submissions must be read and understood in
tandem with the previous submission on Article 21. This is because the question of the exercise
of powers by the defence forces and excessive power used by the Executive Magistrates and the
validity of the amendment carried to Article 21 are inextricably related.

As established above, it is clear that Article 21 has not been abrogated to exclude its
objective but to further the real intention behind its inclusion. As a logical corollary, the abuse of
power by the Executive Magistrates and control by the defence forces is in consistence to the
guarantee provided under Article 21 which only requires that executive actions must be carried
out in accordance with some valid law.

III.2 The grant of power to the defence forces is legal.

The respondent seeks to lay emphasis on the fact that owing to upsurgings in different
parts of Royalsthan owing to pluralism and conflicts of interests, coupled with the fact that the
country is surrounded by “troubled states” and its neighbours engaged in actions questioning the
sovereignty of Royalsthan, an emergency was declared. It is in such a situation that the defence
was given control of certain areas. And these were not just any areas, but specific areas were the
police force was unable to contain the situation. These set of facts in themselves lead to a strong
presumption in favour of the Government’s decision to grant control to the defence forces. In this
context it is also submitted that the grant of control to defence forces, especially during times of
war or emergency is not uncommon.

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Drawing from the Indian experience, which country’s Constitution mirrors that of
Royalsthan and has the same guarantees, the enactment of the Defence of India Act and the Civil
Defence Act strengthen the submission of the respondent. During the national emergency
proclaimed in 1962, the Defence of India Act of 1962 was enacted. Once this Act ceased to be
operative, the Civil Defence of India Act, 1968 has come into force. The objective of this Act is
summarized in the definition of “civil defence” as any measures, not amounting to actual
combat, for affording protection to any person, property, place or thing in India or any part of the
territory thereof against any hostile attack, whether from air, land, sea or other places, or for
depriving any such attack of the whole or part of its effect, whether such measures are taken
before, during, at or at the time of such attack.29

Therefore, in the light of these common responses, the decision of the Union Government
to employ defence forces can be justified. It may also be emphasized that the decision was taken
in public interest and the emergency was lifted once the situation was back to normal in the
country.

III.3 The exercise of powers exceeding their positions by Executive Magistrates is

justified.

The facts at hand indicate that the county was already reeling under an emergency and the
defence forces were given charge of certain areas were the police was unable to contain the
situation. While such grave circumstances prevailed, the Executive Magistrates were forced to
use powers beyond their positions in order to restore normalcy.

It is more importantly submitted that the action of the Executive Magistrates is supported
by the principle underlying the Doctrine of Necessity. The phrase ‘Doctrine of Necessity’ is a
used to describe the basis on which administrative actions by administrative authority, which are
designed to restore order, are found to be constitutional. The maxim on which the doctrine is
based, “that which is otherwise not lawful is made lawful by necessity”, originated in the
writings of the medieval jurist Henry de Bracton, and similar justifications for this kind of

29 Section 2 (a) of the Indian Civil Defence Act, 1968.

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administrative action have been advanced by more recent legal authorities, including William
Blackstone.30 On various occasions and in different contexts, the Hon’ble Supreme Court of
India has affirmed the doctrine as an exception to bias. 31 Thus, the actions which were done by
the Executive Magistrate in order to establish normalcy was necessitated and justified by the
circumstances. The fact that they were successful in their actions only fortifies the argument
about the bona fides of their intentions.

Moreover, as a matter of general policy, actions of the executive done in good faith are
immune from prosecution. This is a common feature across penal laws in India, to whose basic
document, that of Royalsthan mirrors. The Code of Criminal Procedure, 1973 under Section 132
(2) (a) in certain circumstances and the Indian Penal Code, 19860 under Section 71 also provide
for exclusion of acts or offences from prosecution when done under good faith.
Therefore, in the light of the above, it is respectfully submitted that the granting of
control to defence forces and the use of powers in excess of their position by the Executive
Magistrates is justified.

CONCLUSION & PRAYER

Wherefore, in the light of the facts of the case, arguments advanced and authorities cited, it
is submitted that the Hon’ble Supreme Court of Royalsthan may be pleased to adjudge and
declare that:

1) The writ petition filed by APPL is not maintainable.

30 Durga Das Basu, Administrative Law, 6th Ed., Kamal Law House, Kolkatta, 2005.
31 Gullapali Nageshwar Rao v State of Andhra Pradesh, AIR 1959 SC 308; Ashok Kumar Yadav v State of
Haryana, AIR 1984 SC 1572.

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2) The deletion of Article 32 by an amendment to the constitution is valid.

3) The explanation added to Article 21 of the Constitution of Royalsthan by the amendment is
valid.
4) The grant of powers to the defence force and the use of powers in excess of their position by
the Executive Magistrates is justified.

And pass any other order which the court may deem fit in the ends of equity, justice,
expediency and good conscience in favour of the petitioner. All of which is respectfully
submitted

Place: S/d_________________

Date: (Counsel for Respondent)

Memorial for the Respondent