Participant Code: C30

DR. RAM MANOHAR LOHIYA NATIONAL LAW UNIVERSITY, LUCKNOW

CONCOURS, 2017

Before,

THE HON’BLE SUPREME COURT OF WESTEROS

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF WESTEROS

HIGH SPARROW.................................................................................................PETITIONER
V.

UNION OF WESTEROS.....................................................................................RESPONDENT
CLUBBED WITH

WRIT PETITION UNDER ARTICLE 32 OF THE CONSTITUTION OF WESTEROS

GUTHRUM............................................................................................................PETITIONER
V.

UNION OF WESTEROS.....................................................................................RESPONDENT
CLUBBED WITH
SPECIAL LEAVE PETITION UNDER ARTICLE 136 OF THE CONSTITUTION OF WESTEROS

WESTROS TRADING COMPANY..................................................................PETITIONER

V.

UNION OF WESTEROS AND STATE OF MEREEN............................. RESPONDENT

ON SUBMISSION TO THE SUPREME COURT OF WESTEROS

WRITTEN SUBMISSION ON BEHALF OF THE PETITIONERS

- HIGH SPARROW, GUTHRAM AND WESTEROS TRADING COMPANY

 MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF CONTENTS

TABLE OF CONTENTS……………………………………………………………………02

INDEX OF AUTHORITIES………………………………………………………………..04

LIST OF ABBREVIATIONS………………………………………………………………06

STATEMENT OF JURISDICTION…………………………………………………........07

STATEMENT OF FACTS…………………………………………………………………08

ISSUES RAISED……………………………………………………………………………09

SUMMARY OF ARGUMENTS………………………………………………….……….10

ARGUMENTS ADVANCED……………………………………………………………..12

[ISSUE 1] : THAT THE SECTION 39 OF THE UNLAWFUL ACTIVITIES

(PREVENTION) ACT, 1967 AND THE UNLAWFUL ACTIVITIES PREVENTION
(AMENDMENT ) ACT, 2015 ARE VIOLATION OF ARTICLE 19 OF CONSTITUTION OF
WESTEROS…………………………………………………………………………………12

[1.1] Freedom of speech and expression is a fundamental right under article 19 of

constitution of Westeros……………………………………………………………………..12

[1.2] Unlawful activities (prevention) act,1969 and Unlawful activities prevention

(amendment) act, 2015 put unreasonable restrictions on freedom of speech and expression , thus
violating article 19 of constitution of Westeros……………………………………………...13

[ ISSUE 2] : THAT THE MEMORANDUM OF PROCEDURE FOR AUTHORISED

SURVEILLANCE ACTIVITIES TO CURB TERRORISM ,2015 OR ANY ACTION TAKEN
THEREUNDER IS VIOLATION OF ARTICLE 21 OF THE CONSTITUTION OF
WESTEROS……………………………………………………………………………….....16.

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 MEMORIAL ON BEHALF OF THE PETITIONER

[2.1] Right to privacy is a fundamental right under article 21 of constitution of

Westeros………………………………………………………………………………………16

[2.2] Memorandum of procedure for authorized surveillance activities to curb terrorism

,2015violates right to privacy under article 21 of constitution of Westeros…………………18

[ISSUE 3] : THAT THE HIGH COURT OF MEREEN WAS NOT JUSTIFIEDTO HOLD
THAT THE CIVIL SUIT FILED BY THE STATE OF MEREEN WAS MAINTAINABLE IN
THE VIEW OF THE PROVISIONS CONTAINED UNDER SECTION 86 OF THE CODE OF
CIVIL PROCEDURE…………………………………………………………………….20

[3.1] Section 86 of code of civil procedure gives the procedure of filing civil suit against
foreign ruler, envoys etc. ……………………………………………………………………..20

[3.2] The civil suit filed is not maintainable as Westeros trading company is working on
behalf of government of Septonland, therefore prior permission of central government was
required before filing the suit , which was not taken here in this case………………………...22

PRAYER……………………………………………………………………………………...24

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 MEMORIAL ON BEHALF OF THE PETITIONER

TABLE OF AUTHORITIES

Cases

Basheshar Nath v CIT AIR 1959 SC 149. .................................................................................................. 19

Chintaman rao v State of MP 1950 SCR 759. ........................................................................................... 14

Compania Noviera Vasoongado v S. S. Cristina (1938) AC 485. .............................................................. 22

Dulerai And Co. v Pokerdas Mengraj AIR 1952 Bom 335. ....................................................................... 20

Duleria and Co. v Pokerdas Mengraj AIR 1952 Bom 335. ....................................................................... 23

Gaekwar Baroda State of Railway v Hafiz Habib ul Haq AIR 1934 All 740............................................. 20

Govind v State of MP (1975) 2 SCC 148. ................................................................................................... 14

Govind v State of MP AIR 1975 SC 1378. ........................................................................................... 17, 18

In Re Comr. For Workmen’s v Unknown AIR 1951 Mad 880.................................................................... 21

Kehar Singh v The State (Delhi Administration) AIR 1988 SC 1883......................................................... 19

Kenya Airways v Jinibai B Keshwani AIR 1998 Bom 287......................................................................... 22

Khanji Kashari Khanji v Gulam Rasul Chandbhai AIR 1955 Bom 449. ................................................... 21

Kharak Singh v State of UP (1964) 1 SCR 332. ......................................................................................... 18

Maneka Gandhi v Union of India (1978) 1 SCC 248. ................................................................................ 17

Mansoor Mumtaz and others v Saudi Arabian Airlines AIR 2002 Del 103. .............................................. 23

Mansoor Mumtaz and Others v Saudi Arabian Airlines AIR 2002 Del 103. ............................................. 20

MRF Ltd. v Inspector Kerala Government AIR 1999 SC 188. ................................................................... 13

Nandani Satpatti v P.L. Dani AIR 1978 SC 1025. ..................................................................................... 16

Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545. ............................................................ 19

Om Kumar v Union of India AIR 2002 SC 3689. ....................................................................................... 13

P. S. Ochani v World Health Organisation (2002) 61 DRJ 672. ................................................................ 23

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Prem Lala Nahate v Chandi Prasad Sikaria AIR 2007 SC 1247. .............................................................. 22

PUCL v Union of India and Others AIR 1997 SC 568............................................................................... 17

Qatar Airways v Shapoorji Pallonji AIR 1998 Bom 287. ........................................................................ 21

R. Rajagopal v State of Tamilnadu AIR 1995 SC 264................................................................................ 16

Ramesh Thapar v State of Madras AIR 1950 SC 124. ............................................................................. 15

Ramesh Thapar v State of Madras AIR 1950 SC 124. ............................................................................... 12

Sakal Paper (P) Ltd. v Union of India AIR 1962 SC 305 .......................................................................... 14

State of Madras v V. G. Rao AIR 1952 SC 196. ......................................................................................... 13

Suptd. Central Prison, Fatehgarh v Ram Manohar Lohiya AIR 1960 SC 633. ........................................ 15

Wolf v Colorado (1948) 338 US 25. ........................................................................................................... 16

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LIST OF ABBREVIATIONS

1. AIR – All India Reporter

2. SC- Supreme Court

3. Ltd. – Limited

4. SCC – Supreme Court Cases

5. SCR – Supreme Court Reporter

6. US – United States

7. PUCL – Public Union of Civil Liberties

8. Bom. – Bombay

9. Del. – Delhi

10. Mad. – Madras

11. Co. - Corporation

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 MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF JURISDICTION

The Counsel for the Petitioner humbly submits before the Hon’ble Supreme Court of Westeros,
the memorandum on behalf of the petitioners, Mr. High Sparrow and Guthrum who filed a
petition under article 32 of constitution of Westeros along with the special leave petition filed
under article 136 of constitution of Westeros by Westeros Trading Company.

The present memorandum sets forth the facts, contentions and arguments

in the present case.

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 MEMORIAL ON BEHALF OF THE PETITIONER

STATEMENT OF FACTS

I. After coming into power in 2014, central cabinet of SDA proposed amendment of Unlawful
Activities Prevention Act 1969, the object being to prevent the propaganda war conducted by
various terrorist organizations which are endorsed by people on various platforms, even though
they did not engage in actual killings or terrorist activities. Opposition alleged the bill to be
violation of freedom of speech and expression. Despite the opposition, the bill was passed .

II. In February, 2016 while campaigning for university elections in King’s Landing University,
one of the candidates, Mr. High Sparrow asked the believers of FAITH to rise up against cruel
treatment of coalition forces acting in Mereen. Two days later, a violent uprising was held in
Mereen which was led by Guthrum. The state government of Mereen arrested Guthrum along
with few individuals. It was revealed that Guthrum was linked to an organization Hand which
was sponsored by Westeros Trading Company in which substantial investments are made by the
government of neighboring country, Septonland. The government of Westeros declared Hand as
a terrorist organization. Meanwhile Mr. Sparrow started posting Hand’s propaganda on internet.

III. Mr. Sparrow was arrested under section 39 of Unlawful Activities Prevention Act, 1969. Mr.
Sparrow filed a petition under article 32 of constitution challenging the validity of the act. After
the publishing of conversations between officers of NIA and ministry of home affairs regarding
the searching of every email by Wikileaks, Guthrum also filed a petition under article 32 alleging
the action of government as violating his right to privacy.

IV. Government of Mereen also filed a civil suit against Westeros Trading Company for damage
caused to the government establishments during the protest. Civil court dismissed the case on the
ground that prior permission of central government was required before filing the suit under
section 86 of CPC which was not taken by the plaintiff. The state government appealed in the
high court who allowed the suit calling the matter to be an exceptional case .Now, the company
has filed a petition under article 136 of constitution in the Supreme Court challenging the
decision of high court.

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 MEMORIAL ON BEHALF OF THE PETITIONER

ISSUES RAISED

I. WHETHER SECTION 39 OF UNLAWFUL ACTIVITIES (PREVENTION) ACT, 1967 AND

THE UNLAWFUL ACTIVITIES PREVENTION (AMENDMENT) ACT, 2015 ARE
VIOLATIVE OF ARTICLE 19 OF CONSTITUTION OF WESTEROS.

II.WHETHER THE MEMORANDUM OF PROCEDURE FOR AUTHORISED

SURVEILLANCE ACTIVITIES TO CURB TERRORISM, 2015 OR ANY ACTION TAKEN
THEREUNDER IS VIOLATIVE OF ARTICLE 21 OF THE CONSTITUTUION OF
WESTEROS.

III. WHETHER THE HIGH COURT OF MEREEN WAS JUSTIFIED TO HOLD THAT THE
CIVIL SUIT FILED BY THE STATE OF MEREEN WAS MAINTAINABLE IN VIEW OF
THE PROVISIONS CONTAINED UNDER SECTION 86 OF THE CODE OF CIVIL
PROCEDURE.

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SUMMARY OF ARGUMENTS

I. THAT THE SECTION 39 OF UNLAWFUL ACTIVITIES PREVENTION ACT, 1967

AND THE UNLAWFUL ACTIVITIES PREVENTION (AMENDMENT) ACT, 2015 ARE
VIOLATIVE OF ARTICLE 19 OF CONSTITUTION OF WESTEROS.

Freedom of speech and expression is a fundamental right under article 19 of constitution of

Westeros. Section 39 of Unlawful activities (prevention) act, 1967and Unlawful activities
prevention (amendment) act, 2015 put unreasonable restrictions over their freedom of speech and
expression. The act put forth that anyone with the intention of further the activities of a terrorist
organization by providing material support or resources or disguises the nature of material
support or resources. Under the term ‘material support’ the act has included any property, service
expert advice or assistance etc. This definition of support in the present case has been extended
upto the independent advocacy of an idea. Thus , it put an unreasonable restriction on freedom of
speech and expression as independent advocacy is a fundamental right of every citizen under
constitution of Westeros which cannot be curtailed down without giving any reasonable reason.

II. THAT THE MEMORANDUM OF PROCEDURE FOR AUTHORISED

SURVEILLANCE ACTIVITIES TO CURB TERRORISM, 2015 OR ANY ACTION
TAKEN THEREUNDER IS VIOLATIVE OF ARTICLE 21 OF CONSTITUTUION OF
WESTEROS.

Right to privacy is a fundamental right guaranteed by the constitution of westeros under article
21. The memorandum of procedure for authorized surveillance activities to curb terrorism, 2015
violates their right to privacy. Under the above memorandum, the government of Westeros
checked content of every email going in and out of Westeros and covertly tracked and stored
telephone conversation of people recently arrested in relation to the attacks in Mereen thus
violating the fundamental right to privacy as right to live guarantees every citizen a free life
without any let or hindrance.

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III. THAT THE HIGH COURT OF MORDOR WAS NOT JUSTIFIED TO HOLD THAT
CIVIL SUIT FILED BY THE STATE OF MORDOR WAS MAINTAINABLE IN THE
VIEW OF THE PROVISIONS CONTAINED UNDER SECTION 86 OF THE CODE OF
CIVIL PROCEDURE.

Section 86 of the code of civil procedure provides that except with the consent of central
government, certified in writing by a secretary to that government, no suit can be filed against
the property of any foreign state. Westeros trading company is a company in which substantial
investments are made by the government of Septonland. Therefore the company is operating on
behalf of the government of Septonland. So, it comes under the definition of foreign ruler given
in section 86. As a result the suit filed by the state of Mereen was not maintainable as prior
consent of the central government was not taken. Therefore, High court was not justified in its
decision of allowing the suit.

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ARGUMENTS ADVANCED

I. THAT THE SECTION 39 OF THE UNLAWFUL ACTIVITIES PREVENTION ACT,

1967 AND THE UNLAWFUL ACTIVITIES PREVENTION (AMENDMENT) ACT, 2015
ARE VIOLATIVE OF ARTICLE 19 OF THE CONSTITUTION OF WESTEROS.

It is humbly submitted before the Hon’ble Supreme court of Westeros that the section 39 of
Unlawful activities (prevention) act, 1967 and the Unlawful activities prevention (amendment)
act, 2015 are violative of freedom of speech and expression under article 19 of the constitution of
Westeros as it includes even the independent advocacy under the term ‘material support’ and
prescribes the provision of arrest for the same.

[1.1] FREEDOM OF SPEECH AND EXPRESSION IS A FUNDAMENTAL RIGHT UNDER

ARTICLE 19 OF THE CONSTITUTION OF WESTEROS.

Articles 19-22 of the constitution are grouped together under the heading ‘right to freedom’.
Certain specific freedoms are guaranteed under article 19 which can be subjected to reasonable
restrictions by the law. Article 19 (1) (a) guarantees to every citizen right to freedom of speech
and expression. These rights are important in as much as they are at the root of a democratic
society and are vital to the functioning of a democratic political system.

In Ramesh Thapar v. State of Madras 1Supreme court held that freedom of speech and
expression includes the freedom of supporting an idea, propagation of ideas, their publication
and circulation.

Thus, in view of the above cited case , the restriction put on the advocacy of an idea by the
unlawful activities prevention act is violating the right to freedom of speech and expression.

1
Ramesh Thapar v State of Madras AIR 1950 SC 124.

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[1.2] UNLAWFUL ACTIVITIES PREVENTION ACT ,1967 AND THE UNLAWFUL

ACTIVITIES PREVENTION (AMENDMENT) ACT, 2015 PUT RESTRICTION MORE
THAN REQUIRED AND IT WENT MUCH BEYOND ITS PURPOSE.

It is humbly submitted before the Hon’ble Supreme Court of westeros that the Unlawful
activities prevention act, 1967 and the Unlawful activities prevention (amendment) act, 2015 put
an unreasonable restriction on the freedom of speech and expression. In the present case Mr.
High Sparrow was arrested for his independent advocacy of the ideas of the organization HAND.

The clauses (2) – (6) of article 19 give the grounds for restrictions on the right to freedom given
in the clause (1) of the article. The restrictions have to be reasonable and the question of
reasonableness of a restriction is a justiciable issue.

The Supreme court has said that there are no general formulae for determining the
reasonableness of restrictions and that the decision in each case depend upon the facts of the
case.2

Also the restrictions imposed should not be more than required that is where it is permissible to
interfere with the right, it must not be done in a manner and to an extent that it becomes
unreasonable. Here, the unlawful activities prevention act is putting so much of restrictions
which are not actually required.

As said by the court in the MRF Ltd. v. Inspector Kerala Government3, the restrictions imposed
on a freedom should not be arbitrary or excessive or beyond what is required in the situation in
the interest of public. In Om kumar v. Union of India4, observation of the court was that the
restriction on the freedom should be limited only to the extent necessary to protect society of
which a citizen is a part.

Therefore, while putting any restriction over any fundamental right care should be taken not to
restrict freedom beyond requirement. In the present case also, there was no requirement of
putting restriction even over independent advocacy of any idea over internet. Thus, the public

2
State of Madras v V. G. Rao AIR 1952 SC 196.
3
MRF Ltd. v Inspector Kerala Government AIR 1999 SC 188.
4
Om Kumar v Union of India AIR 2002 SC 3689.

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order was not that much distorted that a citizen would be made deprived of even expressing his
views in public domain, without any bad intention.

In an almost similar case of Chintaman rao v. State of MP5 Supreme Court invalidated a law of
the government of Madhya Pradesh as an unreasonable restriction on the freedom of trade and
business which totally prohibited the manufacture of bidis during agricultural season. The
purpose of law was to prevent the diversion of agricultural labor from agriculture. Court held that
the law went beyond the purpose. Just like that the unlawful activities prevention act has also
went beyond its purpose of preventing unlawful activities as it has put restriction over any kind
of expression of support or advocacy of any idea.

[1.3] THE UNLAWFUL ACTIVITIES PREVENTION ACT 1967 AND THE UNLWFUL
ACTIVITIES PREVENTION (AMENDMENT) ACT, 2015 PUT UNREASONABLE
RESTRICTIONS OVER THE FREEDOM OF SPEECH AND EXPRESSION.

The reasonability of any restriction over any fundamental right depend upon the nature of the
right to be infringed and nature of the interest sought to be protected. By the unlawful activities
prevention act, the law to be infringed is the right to freedom of speech and expression and the
main objective is to maintain social peace and order.

Now, talking about the freedom of speech and expression or any right which is sought to be
infringed by this act, taking into consideration the observation of supreme court in the case of
Sakal Paper (P) Ltd. v. Union of India6that there is nothing in article 19 which permits the state
can abridge this right on the ground of conferring benefits upon the public in general or upon a
section of public. It is not upon the state to curtail or infringe the freedom of speech and
expression of an individual for promoting the general welfare of a section or a group of people
unless its action could be justified under a law.

In Govind v. State of MP7 Supreme court was called upon to decide the constitutionality of a
Madhya Pradesh Police Regulations providing for domiciliary visits and for shadowing the
movements for hardened animals. Supreme court upheld the validity of regulations but stressed

5
Chintaman rao v State of MP 1950 SCR 759.
6
Sakal Paper (P) Ltd. v Union of India AIR 1962 SC 305.
7
Govind v State of MP (1975) 2 SCC 148.

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the point that they were applicable only to limited class to citizens who are determined to lead a
criminal life or whose antecedents would reasonably lead to the conclusion that they will lead
such a life. In the view of this decision it could be concluded that the provisions of the unlawful
activities prevention act should have been imposed upon a set of people who were determined to
propagate the ideas of the terrorist organization Hand with the intention to further the activities
of the terrorist group but not to the general public. Thus, the restriction put was unreasonable as
it was imposed even on the people who were not those ideas on internet with the intention to
further the activities of terror group but just as independent advocacy.

Also in Ramesh Thapar v. State of Madras8majority of the Supreme court draw a distinction
between the security of state and that of public order. It was held that security of state get
threatened only by serious and aggravated form of public disorder and not by relatively minor
breaches of peace of a purely local significance.

In the present case, security of state was not threatened by the expression of views by Mr.
Sparrow. Clearly, it was not a serious public disorder.

In Supdt. Central Prison, Fatehgarh v. Ram Manohar Lohiya 9 Subba Rao J. , said that in order
to be reasonable , a restriction imposed in interest of public order should have proximate
connection or nexus with public order and it would not be enough if the nexus instead of being
proximate was too far fetched hypothetical or remote. He further pointed out that the restriction
imposed should be relevant to the ground for the protection of which it was imposed and also in
order to be reasonable it should not be excessive.

In the present case, just by the expression of individual opinions public order was not disturbed
i.e. the restriction imposed and the objective of public order did not have any proximity and also
the restriction imposed is excessive as cited by many case laws above.

Therefore, it could be concluded that the Unlawful activities (prevention) act is violative of
freedom of speech and expression under article 19 of the constitution of Westeros.

8
Ramesh Thapar v State of Madras AIR 1950 SC 124.
9
Suptd. Central Prison, Fatehgarh v Ram Manohar Lohiya AIR 1960 SC 633.

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II. THAT THE MEMORANDUM OF PROCEDURE FOR AUTHORISED

SURVEILLANCE ACTIVITIES TO CURB TERRORISM, 2015 OR ANY ACTION
TAKEN THEREUNDER IS VIOLATIVE OF ARTICLE 21 OF CONSTITUTION OF
WERSTEROS.

It is humbly submitted before the Hon’ble Supreme court of Westeros that the Memorandum of
procedure for authorized surveillance activities to curb terrorism or any activities thereunder are
violative of Right to privacy given under article 21 of the constitution of Westeros.

[2.1] RIGHT TO PRIVACY IS A FUNDAMENTAL RIGHT UNDER ARTICLE 21 OF

CONSTITUTION OF WESTEROS.

It is humbly submitted before the Hon’ble Supreme court that the Right to Live in article 21 also
include Right to privacy and it has been established by various judgments of Supreme court.

In R. Rajagopal v. State of Tamilnadu10 Supreme court held that the right to privacy though not
expressly mentioned in the constitution, was inferred from the guarantee of right to live under
article 21. The expression personal liberty also include right to privacy.

Also in Nandani Satpatti v. P.L.Dani11 , Supreme court observed that the right to life guaranteed
under article 21 of the constitution has been interpreted as the right to live with human dignity.
By virtue of his dignity, each individual has a right to a private enclave where he may lead a free
life without any hindrance. In the light of this observation of court it may be inferred that the
provision given in the memorandum in question to search the content of every email going in and
out of the Westeros put a hindrance on life of an individual.

In Wolf v. Colorado12 court observed that every democratic society sanctifies domestic life. It is
expected to give his rest, physical happiness, peace of mind and security. In the last, resort a
person’s house where he lives with his family is his ‘castle’. It is rampart against encroachment
of his liberty. Subba Rao J. in Kharak Singh case , taking into account the above cited
observation of court said that right to personal liberty guaranteed by constitution of India

10
R. Rajagopal v State of Tamilnadu AIR 1995 SC 264.
11
Nandani Satpatti v P.L. Dani AIR 1978 SC 1025.
12
Wolf v Colorado (1948) 338 US 25.

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encompasses not only the right to move about the country but also to be free from encroachment
on personal liberty & accordingly held that Right to life include right to privacy.

It has been further held in PUCL v. Union of India and Others.13 that the right to privacy by itself
has not been identified under the constitution. As a concept it may be too hard and moralistic to
define it judicially. Whether right to privacy can be claimed or has been infringed in a given case
would depend upon the facts of the said case.

Also in Maneka Gandhi v. Union of India14, it was stated by the court that ‘ when the
constitution makers enacted part III, they inscribed in the constitution certain basic rights which
inhere in every human being and which are essential for the enfoldment and full development of
his personality. These rights represent the basic values of a civilize society and the constitution
makers declared that they shall be given a place of pride in the constitution and elevated them to
the status of fundamental rights and in no way shall the interpretation of these rights may be
confined.

In Govind v. State of MP15court noted the difficulties in precisely defining the scope of privacy
interest and pointed out that as an interest in individual autonomy it was already protected as part
of individual liberty. Any right to privacy must encompass and protect the personal intimacies of
home, the family, marriage, motherhood, procreation and child rearing.

From all the above cited cases, it can be clearly concluded that the right to life includes right to
privacy and which could not be curtailed away by simple legislations. Thus, right to life has a
status of fundamental right.

13
PUCL v Union of India and Others AIR 1997 SC 568.
14
Maneka Gandhi v Union of India (1978) 1 SCC 248.
15
Govind v State of MP AIR 1975 SC 1378.

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[2.2] MEMORANDUM OF PROCEDURE FOR AUTHORISED SURVEILLANCE

ACTIVITIES TO CURB TERRORISM, 2015 VIOLATES RIGHT TO PRIVACY UNDER
ARTICLE 21 OF CONSTITUTION OF WESTEROS.

It is humbly submitted before the Hon’ble Supreme court that the memorandum of procedure for
authorized surveillance activities to curb terrorism, 2015 violates the right to privacy given under
article 21 of the constitution of Westeros as it gives the government the right to government to
check the content of every email going in and out of Westeros, also to tap the telephonic
conversation of a specific class of people. As these provisions put a hindrance over the life of a
person, thus violates the right to privacy.

In Kharak Singh v. State of UP16 the question for decision was whether domiciliary visits,
shadowing of the movements of the petitioner and secret watch by the police to see as to whom
were visiting petitioner’s house constituted an infringement of his fundamental rights. Court held
that the domiciliary visits were violative of personal liberty under article 21. The right to
personal liberty also include the freedom from encroachment on one’s private life. Court
concluded that the constitution did not expressly declared right to privacy as fundamental right
but pointed out that right is an essential ingredient of personal liberty. In his view, domiciliary
visits were violative of privacy right and nothing was bad to a man’s physical happiness than a
calculated interference with his privacy.

Also in Govind v. State of MP17 petitioner challenged the constitutionality of a regulation from
the Madhya Pradesh police which provided for the police surveillance over habitual offenders
involving interference with one’s living and movements. Mathew J. speaking on behalf of a three
judge bench noted the importance of privacy in modern time when individuals need a sanctuary
where “ they can drop the mask, desist for a while from projecting on the world the image they
want to be accepted as themselves, an image that may reflect the values of their peers rather than
realifies of their nature.

16
Kharak Singh v State of UP (1964) 1 SCR 332.
17
Govind v State of MP AIR 1975 SC 1378.

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In the light of above two cases cited it can be clearly said that the provision of the memorandum
to check the content of every email going in and out of the Westeros is interfering with one’s
privacy and therefore it should be declared illegal.

The memorandum of procedure for authorized surveillance activities to curb terrorism, 2015 also
give the provision for the tapping of telephonic conversation of the individuals recently arrested
in relation to the violent protests in Mereen. The reasoning given behind this is that they have
waived of their right by involving in such a violent activity.

The Supreme court of India in Basheshar Nath v. CIT18 was of view that a fundamental right
being in nature of prohibition addressed to the state , none of the fundamental right under the
constitution can be waived.

Also in Olga Tellis v. Bombay Municipal Corporation19 court reaffirmed that there cannot be any
estoppel against the constitution, the paramount law of the land, and that a person cannot waive
any of the fundamental rights conferred upon him by part III of the constitution by any act of his.

Thus, the memorandum of procedure for authorized surveillance activities to curb terrorism,
2015 violates the right to privacy thereby violating the right to life under article 21 of the
constitution of Westeros.

Also the right to life can be taken away only by procedure established by law. In Kehar Singh v.
The State (Delhi Administration)20 Supreme court said that procedure established by law means
the procedure as was on the day on which constitution was adopted. A question was raised
whether it can be taken away by amending existing statute. Court said that it is not so easy to
contend that by amending the code of criminal procedure the effect of article 21 could be taken
away.

Thus it can be concluded that the memorandum is violating the right to life under article 21 of
the constitution of Westeros.

18
Basheshar Nath v CIT AIR 1959 SC 149.
19
Olga Tellis v Bombay Municipal Corporation (1985) 3 SCC 545.
20
Kehar Singh v The State (Delhi Administration) AIR 1988 SC 1883.

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III. THAT THE HIGH COURT OF MORDOR WAS NOT JUSTIFIED TO HOLD THAT
THE CIVIL SUIT FILED BY THE STATE OF MORDOR WAS NOT MAINTAINABLE
IN THE VIEW OF THE PROVISIONS CONTAINED UNDER SECTION 86 OF THE
CODE OF CIVIL PROCEDURE.

It is humbly submitted before the Hon’ble Supreme court of Westeros that the high court of
Mereen was not justifiable in allowing the civil suit filed by the state of Mereen against the
Westeros Trading Company as in the company substantial investments were made by the
government of Septonland. Therefore, the company come under the definition of foreign ruler
given in article 86. Therefore prior consent of the central government was necessary before filing
the suit which was not taken here by the state of Mereen.

[3.1] SECTION 86 OF CODE OF CIVIL PROCEDURE GIVES THE PROCEDURE OF

FILING THE CIVIL SUIT AGAINST FOREIGN RULERS, ENVOYS ETC.

Section 86 of the code of civil procedure provide that except with the consent of the central
government , certified in writing by a secretary to that government, no decree shall be executed
against the property of any foreign state.

In the case of Gaekwar Baroda State of Railwayv. Hafiz Habib ul Haq21 court observed that the
section 86 of the code of civil procedure relate to an important matter of public policy in India
and the express provisions contained therein are imperative and must be observed.

Also in Dulerai And Co. v. Pokerdas Mengraj22 court held that the sanction required by the
section is necessary for all suits against a ruler of a foreign state whether in his private capacity
or in his sovereign capacity.

In Mansoor Mumtaz and others v. Saudi Arabian Airlines23 court said that the provisions as to
requirement of prior permission of central government for filing suits against foreign state is
mandatory. There can be no waiver.

21
Gaekwar Baroda State of Railway v Hafiz Habib ul Haq AIR 1934 All 740.
22
Dulerai And Co. v Pokerdas Mengraj AIR 1952 Bom 335.
23
Mansoor Mumtaz and Others v Saudi Arabian Airlines AIR 2002 Del 103.

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 MEMORIAL ON BEHALF OF THE PETITIONER

It was also held that the provisions of section 86 are imperative and could not be waived in the
case of Khanji Kashari Khanji v. Gulam Rasul Chandbhai24.

In In Re Comr. Workmen’s v. Unknown25 court said that one of the cardinal principle of
international law is that every sovereign state respects the independence of every other sovereign
state and as a consequence of this absolute independence and of this international comity which
underlies the relation between sovereign states, each state declines to exercise by means of any
of its courts, jurisdiction over the person of any sovereign state or ambassador or even over the
public property of any state.

Thus it can be held clearly that the section 86 of the code of civil procedure gives immunity to
the foreign rulers and even their property.

Also in case of Qatar Airways v. Shapoorji Pallonji26 court held that the statute contains no
exception to the covert requirement on the basis of the nature of the activities to which the suit
relates. The only reference to the nature of activities is in section 86(2) (6) which states that the
government may not grant consent unless the foreign state by itself or another trades within the
local limits of the jurisdiction of the court. However, beyond an examination of whether the
entity being sued is a foreign state section 86 does not allow Indian courts to consider the nature
of activities involved in determining whether such consent is required.

In the light of all case cited above it can be inferred that the Westeros trading company was
immune of any civil suit filed against it as it was working on behalf of a government of a foreign
state and therefore it comes under the definition of the foreign state given in section 86 of the
code of civil procedure.

24
Khanji Kashari Khanji v Gulam Rasul Chandbhai AIR 1955 Bom 449.
25
In Re Comr. For Workmen’s v Unknown AIR 1951 Mad 880.
26
Qatar Airways v Shapoorji Pallonji AIR 1998 Bom 287.

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 MEMORIAL ON BEHALF OF THE PETITIONER

[3.2] THE CIVIL SUIT FILED IS NOT MAINTAINABLE AS WESTEROS TRADING

COMPANY IS WORKING ON BEHALF OF GOVERNMENT OF SEPTONLAND ,
THEREFORE PRIOR PERMISSION OF CENTRAL GOVERNMENT WAS REQUIRED
BEFORE FILING THE SUIT , WHICH WAS NOT TAKEN IN THIS CASE.

According to section 86 of the code of civil procedure , except with the prior consent of the
central government, certified in writing by a secretary to that government, no decree shall be
executed against the property of any foreign state. In the present case the suit filed by the state of
Mereen against the Westeros trading company was allowed by the High court of Mereen. This
was not justified because Westeros trading company was working on behalf of the government
of Septonland, therefore it comes under the definition of foreign state under the section 86 of the
code of civil procedure but the state had not taken the consent of the central government.

As said by the court in the case of Kenya Airways v. Jinibai B Kheshwale27that in the suit filed
for possession of premises given on lease and license to manager of a company owned and
controlled by foreign state government if the plaintiff had not obtained the consent of central
government prior to filing of suit, the suit was not maintainable.

Also in Prem Lala Nahate v. Chandi Prasad Sikaria28 court have taken the view that in a case
where notice under section 80 of the code of civil procedure is mandatory, if the averments in the
point indicate the absence of a notice the plaint is liable to be rejected. Same would be the
position when a suit hit by section 86 of the code of civil procedure is filed without obtaining of
consent of the central government if suit is not for rent from a tenant.

The observation of Lord Atkins in Compania Noviera Vasoongado v. S. S. cristina29 become

important here. He deals with two proposition of international law which according to him are
engrafted into the domestic law of England and which seems to be well established and beyond
dispute. The first is that the court of a country will not implead a foreign sovereign i.e. make him
a party of any proceedings without his consent, whether the proceedings involve process against
his persons or sake to recover from him specific property or damages.

27
Kenya Airways vJinibai B Keshwani AIR 1998 Bom 287.
28
Prem Lala Nahate v Chandi Prasad Sikaria AIR 2007 SC 1247.
29
Compania Noviera Vasoongado v S. S. Cristina (1938) AC 485.

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 MEMORIAL ON BEHALF OF THE PETITIONER

The above cited cases show that the consent of the central government was required before filing
the suit which was not taken by the state of Mereen and the suit filed by the state of Mereen
should not have been allowed by the High court of Mereen.

Now the question may arise that whether the company come under the definition of foreign ruler
then it may become clear by the following cases.

In P. S. Ochani v. World Health Organisation30 defendant was a specialized agency of united

nations. Court held that the consent of central government is necessary to file a suit against the
company as it is working on behalf of the United nations. Therefore it enjoys the immunity under
the section 86 of the code of civil procedure.

Also in Mansoor Mumtaz and others v. Saudi Arabian Airlines31 Court held that the Saudi
Arabian Airlines Corporation is controlled by the foreign state. Merely because it is carrying an
independent work will not take it away from the purview of section 86 of the code of civil
procedure. Consequently before filing a suit against said airlines the consent of central
government in writing is necessary.

In Duleria and Co. v. Pokerdas Mengraj32 court held that if the maharaja is a partner in the
defendant firm, by bringing firm before the court and suing the firm, the plaintiff is undoubtedly
suing the maharaja and in suing the maharaja they are contravening the provisions of section 86
of the code of civil procedure.

Therefore it could be concluded that the High court of Mereen was not justified in allowing the
suit filed by the state of Mereen as Westeros trading company was a company owned and
controlled by the government of a foreign state and therefore prior consent of the central
government was required.

30
P. S. Ochani v World Health Organisation (2002) 61 DRJ 672.
31
Mansoor Mumtaz and others v Saudi Arabian Airlines AIR 2002 Del 103.
32
Duleria and Co. v Pokerdas Mengraj AIR 1952 Bom 335.

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 MEMORIAL ON BEHALF OF THE PETITIONER

PRAYER

Therefore in the light of the facts of the case, issues raised, arguments advanced and authorities
cited this Hon’ble court may be pleased to adjudge and declare that :

In the case of High Sparrow v. Union of Westeros :

1. The Unlawful Activities (Prevention) Act, 1967 and the Unlawful Activities Prevention
(Amendment) Act, 2015 are violating article 19 of the constitution of Westeros.

In the case of Guthrum v. Union of Westeros:

1. The Memorandum of Procedure for Authorised Surveillance Activities to Curb Terrorism,

2015 is violating their right to privacy as guaranteed under article 21 of constitution of Westeros.

In the case of Westeros Trading Company v. Union of Westeros :

1. The High court was not justified in its decision of allowing the civil suit filed by the state of
Mereen.

And pass any other order in favor of the petitioners that it may deem fit in the interest of justice,
equity and good conscience.

SD/-

Counsel for Petitioner

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