TEAM CODE: B24

UILS Intra Department Moot Court Competition, 2018

CRIMINAL APPEAL No(s). ___OF 2018

BEFORE THE HON’BLE SUPREME COURT OF PRAAKRIT

PETITION INVOKED UNDER ARTs. 132 & 32 OF THE CONSTITUTION OF PRAAKRIT

STATE OF SAURAMASTHA & ORS……………………………APPEALLANT

VERSUS
NGO VASUDEV KUTUMBKUM, & ANR…………….……………. RESPONDENT

MEMORANDUM ON BEHALF OF THE APPELLANT

 TABLE OF CONTENTS

1. TABLE OF CONTENTS .......................................................................................................... 1

2. LIST OF ABBREVATIONS .................................................................................................... 2
3. INDEX OF AUTHORITIES..................................................................................................... 3
4. STATEMENT OF JURISDICTION......................................................................................... 7
5. STATEMENT OF FACTS ....................................................................................................... 8
6. STATEMENT OF ISSUES ...................................................................................................... 9
7. SUMMARY OF ARGUMENTS ............................................................................................ 10
8. ARGUMENTS ADVANCED ................................................................................................ 11
1. WHETHER THE RELEASE OF ACTIVISTS BY THE HIGH COURT IN THE
PRESENT CASE IS JUSTIFIED? ........................................................................................... 11
1.1. SEQUOIA IS AN ACTIVE MAIOST ....................................................................... 11
1.2. CONSTITUTIONAL VALIDITY OF SECTION 20 OF U.A.P.A. ACT. ............... 12
1.3. Justice Amar Shergill has links with maoists ............................................................. 13
A.Links with Sequoia and other maiosts terrorists ............................................................... 13
B. Charges under section 153A and 153B of IPC implicated upon accused is justificable. 14
C.Social media post of Mr Shergill is defamatory in nature................................................. 14
1.4. There has been no misuse of UAPA act by the State. ................................................ 14
2. WHETHER THE PRESENT PETITION IS MAINTAIBLE BEFORE THE HON’BLE
COURT OR NOT? ................................................................................................................... 15
2.1 Supreme Court does not have the jurisdiction to entertain the instant petition. ............. 15
2.2 The petitioner has no locus standi to approach the court under Art. 32. ........................ 16
2.3 The PILis motivated by personal interest therefore not maintainable. ........................... 17
3. WHETHER THE HIGH COURT HAS CORRECTLY GRANTED DAMAGES UNDER
ART. 226 OF THE CONSTITUTION?.................................................................................... 18
3.1 Freedom of media ........................................................................................................... 18
3.2 Media trial do not violate the right of fair trial .............................................................. 19
3.3 There is no fundamental right of right to be forgotten.................................................... 20
9. PRAYER ................................................................................................................................. 21

MEMORANDUM ON BEHALF OF THE APPELLANT 1

 LIST OF ABBREVATIONS

1. § SECTION
2. ¶ PARAGRAPH
3. & AND
4. Ads ADVERTISEMENTS
5. AIR ALL INDIA REPORTER
6 .Annex ANNEXURE
7. Anr . ANOTHER
8. Art . ART.
9. PPC PRAAKRIT PENAL CODE
10. Cl. CLAUSE
11. Cr. CRIMINAL
12. CrLJ CRIMINAL LAW JOURNAL
13. CrPC CODE OF CRIMINAL PROCEDURE, 1973
14 .CS CHARGE-SHEET
15. FIR FIRST INFORMATION REPORT
16. Govt. GOVERNMENT
17. HC HIGH COURT
18 Hon'ble HONORABLE
19 . i.e. THAT IS
20. IPC INDIAN PENAL CODE, 1860
21 . MANU MANUMANUPATRA
22 No. NUMBER
23. Ors. OTHERS
24. P. PAGE
25. .PS POLICE STATION
26 SC SUPREME COURT
27. SCC SUPREME COURT CASES
28 .SCR SUPREME COURT REPORTER
29 .Supp. SUPPLEMENTARY
30 .TADA TERRORIST & DISRUPTIVE ACTIVITIES (PREVENTION) ACT
31 .UAPA UNLAWFUL ACTIVITIES PREVENTION ACT
32. POTA PREVENTION OF TERRORIST ACT
33. PIL PUBLIC INTEREST LITIGATION.

MEMORANDUM ON BEHALF OF THE APPELLANT 2

 INDEX OF AUTHORITIES

STATUTES

1. CODE OF CRIMINAL PROCEDURE, 1973

2. CONSTITUTION OF INDIA, 1950
3. INDIAN PENAL CODE, 1860
4. UNLAWFUL ACTIVITIES PREVENTION ACT,1967

BOOKS

1. D.D.BASU,Constitution of India, Lexis Nexis Butterworths, Wadhwa, Nagpur.

2. D.D.BASU, Criminal Procedure Code, 1973, Lexis Nexis Butterworths Wadhwa, 4th Edn,
2010.
3. K.D GAUR, The Indian Penal Code, Universal Law Publishing Co. Pvt. Ltd.,4th Ed., 2013.
4. HARI SINGH GOUR,The Penal Law Of India, 4869, (11th Edition, Delhi Law House, New
Delhi, 2006).
5. .H.M. SEERVAI,Constitutional Law of India: A Critical Commentary. [Delhi. Universal
Law Publishing Co. Ltd].
6. J. W. CECIL TURNER KENNY’S,Outlines of Criminal Law, Cambridge University Press, 1952.
7. .KELKAR R. V.,Criminal Procedure Code ,Pillai Eastern Book Company, 4th Ed. 2007 (
Revised by Dr. K. N Chandrasekharan).
8. M P JAIN, Indian Constitutional Law, 1180, LexisNexis Butterworths Wadhwa, Nagpur,
2010.
9. RATANLAL & DHIRAJLAL,The Code of Criminal Procedure, Lexis Nexis
Butterworths,Wadhwa,Nagpur, 20th Ed. 2011(YChandrachud J. &VRManohar J.).
10. RATANLAL & DHIRAJLAL,The Indian Penal Code, Lexis Nexis Butterworths, Wadhwa,
Nagpur, 30th Ed. 2008(Y VChandrachud J. &V R Manohar J.).
11. SARKAR onThe Code of Criminal Procedure, 10th Edn, 2012, Lexis Nexis Butterworths,
Wadhwa, Nagpur.
12. SMITH AND HOGAN, Smith and Hogan's Criminal Law , Karl Laird & David Ormerod
eds., Oxford University Press, 2015.
13. VIBHUTE K. I ,P S A Pillai’s Criminal Law,.,LexisNexis Butterworth’s, 11th Ed., 2012.

MEMORANDUM ON BEHALF OF THE APPELLANT 3

 ARTICLES
1. .305th Report of the Law Commission of United Kingdom, Assisting and Encouraging
Crime/ Participating in Crime, Para 2.49, 2007.
2. ANIL KALHAN, GERALD P. CONROY, MAMTA KAUSHAL, SAM SCOTT MILLER,
AND JED S.RAKOFF “Colonial Continuities: Human Rights, Terrorism, And Security
Laws In India” Colum. J. Asian L. 93 2006-2007.
3. .RAMANAND GARGE,Combating Financing of Terror: An Indian Perspective ,
Vivekananda International Foundation.
4. .FATF (2015), Emerging Terrorist Financing Risks, FATF, Paris www.fatf-
gafi.org/publications/methodsandtrends/documents/emerging-terrorist-financing-risks.html.
5. .J. Venkatesan, “Binayak Sen gets bail in Supreme Court,” The Hindu, April 15, 2011,
http://www.thehindu.com/news/national/Art.1698939.ece?homepage=true.
6. .MINORITIES IN INDIA, 11 Socio-Legal Rev. 103 2015.
7. ROBERT E RIGGS, “Substantive Due Process Of Law”, 1990 Wis. L . Rev. 941
8. .Sedition Laws & The Death Of Free Speech In India , Centre for the Study of Social
Exclusion and Inclusive Policy, National Law School of India University, Bangalore &
Alternative Law Forum, Bangalore, February, 2011.
9. .SHYLASHRI SHANKAR, “ Judicial Restraint In An Era Of Terrorism” 11 Socio-Legal
Rev. 103 2015.
10. .SRIJONI SEN ET. AL, “ Anti-Terrorism Law in India- A Study of Statutes and
Judgements, 2001-2014”, Vidhi, Centre for Legal Policy, June 2015.
11. VIVEK CHADDHA, “ Life Blood of Terrorism”, Bloomsbury Publishing India Pvt.Ltd.,
2011.

DYNAMIC LINKS

1. www.manupatra.com
2. www.scconline.com
3. www.indinakanoon.org
4. www.scconline.com
5. www.lexisnexis.com
6. www.ebscohost.com

MEMORANDUM ON BEHALF OF THE APPELLANT 4

 CASES

1. Abdul Saboor v. State Of Karnataka, AIR 2017, Crl.A.1554 OF 2016…………………..14&15

2. Asit Kumar Sen Gupta v. State Of Chhattisgarh, AIR 2011, SCC 56……………..12
3. Arup Bhuyan, AIR 2013…………………………………………………………….12
4. Baldev Singh Gandhi v. State of Punjab , AIR 2002 SC 1124………………...……15
5. Bennet Coleman . co v.UOI AIR 1972scc 788……………………………………...19
6. Centre for PIL v. UOI (2000) 8 SCC 606………………………………………….. 18
7. Chiranjit Lal Chowdhuri v. Union of India AIR 1950 SCR 869……………………17
8. Coffee Bd. v. Joint C.T.O., AIR 1971 SC 870……………………………………...15
9. Dharmraj Bhanushankar Dave vs. State of Gujarat , AIR 2015…………………….21
10. Gopal Das Mohta v .Union Of India, AIR 1955 SC…………………………………15
11. Hamdard Dawakhana v UOI, 1960 (2) SCR 671…………………………………….19
12. Express Newspapers (Bombay) Ltd. V UOI , 1985 1 SCC 641 …………………….19
13. Indian Express newspapers Pvt.Ltd. Bombay) v.UOI , AIR 1986 SC 515……….....16
14. Prisoners Rights Forum v. High Court Of Judicature At Madras,AIR 2014…….....16
15. Kartar Singh V/s State of Punjab, 1994 (3) SCC 569,……………………………….12
16. Kartongen Kemi AB v. State through CBI, 2004 (72) DRJ 693……………………..20
17. Kishorbhai De Panchal v.Chief Secretary State of Gujarat, AIR 2003 ……….……..18
18. Nazir Khan v. State of Delhi AIR 2003 CRL. 734 …………………………………..11
19. Northern Corporation v. Union of India AIR 1991 SC 764 ……………………..…..16
20. People Democratic Rights v. Ministry of Home Affair AIR 1984 Del 268………….16
21. P.N. Thampy Thera v. UOI ,AIR 1984 SC 74………………………………………..15
22. Rajiv Ranjan Singh’Lalan’ & Anr vs. Union of India and Ors, AIR 2006…………...18
23. R. Harijan Singh and Anr. v .Vijay Kumar, (1996) 6 SCC 466……………………....16
24. Rubabbuddin Sheikh vs State Of Gujarat & Ors , AIR 2010, SC 345………………..11
25. Simranjit Singh Mann vs Union of India1992) 4 scc 653……………………………..17
26. Shantabai v. State of Maharashtra it AIR 1958 SC 931……………………………….16
27. Shreya Singhal v. Union of India AIR 2015 SCC 567………………………………...19
28. State vs Gopal Mishra @ Ashwani @ Samar & others AIR 2011……………………..15
29. State vs Siddarth Vashisth & Manu Sharma , AIR 2000………………………………….19

MEMORANDUM ON BEHALF OF THE APPELLANT 5

30. State of HP v. Umeed Ram Sharma AIR 1986 SC 847……………………………17
31. State vs Siddarth Vashisth & Manu Sharma , AIR 2000……………………………18
32. Subhash Kumar v. State of Bihar AIR 1991 SC 420………………………………. 18
33. Student of Medical College Shimla v.State of HP AIR 1985 ………………………..16
34. Triveniben v. State of Gujarat, AIR 1989 SCC 678…………………………………...17
35. Umed Ram v. State of Himachal Pradesh AIR 1986 SC 847…………………………15
36. Vikas Yadav vs State Of U.P. And Another, AIR 2011………………………………..19

MEMORANDUM ON BEHALF OF THE APPELLANT 6

 STATEMENT OF JURISDICTION

The Respondent most humbly submits to the jurisdiction of the Honourable Supreme Court of
Praakrit under Art.132 and Art.32 of the Constitution of Praakrit.

132. Appellate jurisdiction of Supreme Court in appeals from High Courts in certain cases

1) An appeal shall lie to the Supreme Court from any judgment, decree or final order of a
High Court in the territory of India, whether in a civil, criminal or other proceeding, if the
High Court certifies under Art. 134A that the case involves a substantial question of law
as t the interpretation of this Constitution
2) Omitted
3) Where such a certificate is given, any party in the case may appeal to the Supreme Court
on the ground that any such question as aforesaid has been wrongly decided Explanation
For the purposes of this Art., the expression final order includes an order declaring an
issue which, if decided in favour of the appellant, would be sufficient for the final
disposal of the case

32. Remedies for enforcement of rights conferred by this Part

1) The right to move the Supreme Court by appropriate proceedings for the enforcement of
the rights conferred by this Part is guaranteed
2) The Supreme Court shall have power to issue directions or orders or writs, including
writs in the nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari,
whichever may be appropriate, for the enforcement of any of the rights conferred by this
Part
3) Without prejudice to the powers conferred on the Supreme Court by clause ( 1 ) and ( 2 ),
Parliament may by law empower any other court to exercise within the local limits of its
jurisdiction all or any of the powers exercisable by the Supreme Court under clause ( 2 )
4) The right guaranteed by this article shall not be suspended except as otherwise provided
for by this Constitution

MEMORANDUM ON BEHALF OF THE APPELLANT 7

 STATEMENT OF FACTS

State of Praakrit: Praakrit is world’s largest democracy. The Constitution of Praakrit provides
its citizens various fundamental, poltical & civil rights.

Sequoia :He is an intellectual supporting the rights of Maoist and empathises with them. He has
no criminal record whatsoever. Sequoia became member of Communist Party of Praakrit (CPP)
(Maoist) in 2010 and has attended a couple of meetings of CPP.

2012:Sequoia was arrested in Sauramashtha in September 2012 on allegations of being a

member of the banned Communist Party of Praakrit (Maoist) after the incident of 2012 win
which Naxals had allegedly attacked one SF (Security Forces) camp in the SOMBRORO
Thermal Power station (STPS) police station area.. Trial againt him are going on in other cases
however in STPS case chargesheet is yet to be filed. NIA investigation reveals minutes of
meetings in which he was present

Justice Amar Shergill: He took up the cause of Sequoia and was arrested for having Maoists
and FIR against him was registerd under section 153A, 153B OF IPC.

Media: The media in Praakrit enjoys freedom of speech and expression. The media portrays the
Sequoia and Mr. Shergill as anti nationalist and true supports of naxalism.

Writ petition in HC: Fearing media trial Sequoia filed petition under Art. 32 for fair trial and
prayed for gag order and the court in response ordered postponement of reporting of certain
phrases of the trial till 4 months.

Kiki news channel: This channel after the order of HC showed an show on Sequoia and Mr.
Shergill regarding their common backgrounds & Marxist origin.

Writ petition in HC: The two of them filed petition iunder Art. 226 in HC of Sauramashth
citing violation of “right to be forgotten.” The HC granted damages for the same & ordered
permanent injunction on Tv show. The channel appealed aginst the order in SC. Mr. Shergill also
file a petition under 482 CRPC for quashing of the FIR registered againt him
N.G.O Vasudev Kutumbkum: The N.G.O. filed a writ of habeas corpus in HC praying for
release of Justice Shergill, Sequoia and other poltical prisoners.

High Court order : The HC of Sauramastha ordered release of all the activists and also sent
notice to Law Commision of Praakrit to look into an enablonhg legislation enacting the rigt of
the poltical prisoners.

PIL: Kashi Garoor has filed an PIL under Art. 32 for the rights of poltical prisoners.
Appeal in Supreme Court: Aggrieved by the order the state has filed an appeal under Art. 132 .
Supreme Court: SC has combined the appeal of state, Kiki news channels & PIL.

MEMORANDUM ON BEHALF OF THE APPELLANT 8

 STATEMENT OF ISSUES

ISSUE 1

WHETHER THE RELEASE OF ACTIVISTS BY HIGH COURT IN THE PRESENT CASE IS

JUSTIFIED ?

ISSUE 2

WHETHER THE PRESENT PIL IS MAINTAINABLE BEFORE THIS HON’BLE COURT OR

NOT?

ISSUE 3

WHETHER THE HIGH COURT HAS CORRECTLY GRANTED DAMAGES UNDER ART.
226 OF THE CONSTITUTION?

MEMORANDUM ON BEHALF OF THE APPELLANT 9

 SUMMARY OF ARGUMENTS

1. WHETHER THE RELEASE OF ACTIVISTS BY THE HIGH COURT IN THE

PRESENT CASE IS JUSTIFIED?
The counsel on behalf of the State most humbly submits that the detention of Sequoia , Mr.
Amar Shergill and other prisoners is necessary in the interest of nation’s security,
sovereignty and integrity of State. The speeches and published works of these so called
scholars are anti-national and they hurt the sentiments of Army. The expression of thought is
intrinsically dangerous to the public interests and have scintillating effect on rural masses of
Sauramashtha. Also there are serious allegations pending against them.

2. WHETHER THE PRESENT PIL IS MAINTAINABLE BEFORE THIS HON’BLE

COURT OR NOT?

The counsel on behalf of the State most humbly submits that PIL filed by Mr. Kashi Garoor
is not maintainable .The jurisdiction of the Supreme Court under Art.32 can be invoked only
when fundamental rights given under part III of the constitution of Praakrit have been
violated. The Honorable Court does not have jurisdiction to entertain the present petition as
there is no infringement of fundamental rights of any prisoner by the State. Also, the
petitioner does not have any locus standi in filing the above petition.

3. WHETHER THE HIGH COURT HAS CORRECTLY GRANTED DAMAGES

UNDER ART. 226 OF THE CONSTITUTION?

The counsel on behalf of the Kiki news channel most humbly submits that HC of
Sauramashtha has wrongly granted damages to Sequoia and MR. Amar Shergill.under Art.
226 of constitution on grounds of violation of “right to be forgotten” as there is no such
right under any existing law in in the State of Praakrit. Therfore HC has erred in law while
granting damages.

MEMORANDUM ON BEHALF OF THE APPELLANT 10

 ARGUMENTS ADVANCED

1. WHETHER THE RELEASE OF ACTIVISTS BY THE HIGH COURT IN THE

PRESENT CASE IS JUSTIFIED?
The council on behalf of the State most humbly submits that the release order of all activists by
the HC is not justified and such an order can have grievous repercussions in democratic State of
Praakrit. The detention of these prisoners is necessary in the interest of nation, sovereignty and
integrity of State. The acts, speeches and published works of these so called scholars are anti-
national and they hurt the sentiments of Army. The expression of thought is intrinsically
dangerous to the public interests and have a scintillating effect on rural masses of Sauramashtha.
Also there are serious allegations pending against them.

1.1. SEQUOIA IS AN ACTIVE MAIOST

Active memebership amounts to offence under section 20 of UAPA act

Sequoia is an intellectual supporting the rights of Maoists and empathises with them. By being a
sympathizer of Maoist's activities he is providing assistance which ultimately strengthens and
promotes violence. In the present case he has been booked under several sections of the Praakrit
Penal Code for Murder, and Rioting and under the Unlawful Activities (Prevention) Act
(Sections 18 and 20). He is an active member of Communist Party of Praakrit (CPP) (Maoist)
which was banned under section 2(1)(m) of UAPA in year 2011, thus his active memebership in
instant case is itself sufficeient for his detainment under UAPA act.. NIA has gathered credible
evidence supporting his active membership and that investigation revealed minutes of various
meetings of CPP in which he was present . In Sohrubuddin’s case 1 the court observe the
following:
“The law says if the allegation appears to be ‘prima facie’ true then the court should not release
an accused on bail. So if the police record show something which amy or may not be true or
which maybe revealed undesirable later on, the accused still remains in custody.”
.

1
Rubabbuddin Sheikh vs State Of Gujarat & Ors , AIR 2010, SC 345

MEMORANDUM ON BEHALF OF THE APPELLANT 11

 1.2. CONSTITUTIONAL VALIDITY OF SECTION 20 OF U.A.P.A. ACT.
The counsel also contends that the Constitutional validity of the Terrorist & Disruptive
Activities (Prevention) Act, 1987 has been State V/s Gopal Mishra @ Ashwani @ Samar &
Another2 upheld by the Constitution Bench of the Apex Court in "Kartar Singh V/s State of
Punjab3, which included a provision akin to Section 20 of UAPA and therefore, as long as
Section 20 of UAPA is not struck down or held unconstitutional by a larger bench of the
Supreme Court, membership of a terrorist gang or terrorist organization would continue to
invite penal consequences under section 20 of UAPA act.
It is very clear from the observations made by the Supreme Court that if section 20 were to be
interpreted in that manner, it would at once be considered as violative of the provisions
of section 19 of the Constitution of India, and would be struck down as ultra vires . In fact, their
Lordships of the Supreme Court of India have interpreted the concept of membership as an
active membership to save the relevant provision from being declared as unconstitutional.

In State vs Gopal Mishra @ Ashwani @ Samar & others 4 the court made an observation
regading the arup bhuyam judgement. The judgments in Arup Bhuyan’s case5 says that “ mere
memebership of banned organization will not make a person criminal’” however it does not
say that it is imperative for a case to be covered under the penal provisions of “membership of a
terrorist gang or a terrorist organization" must always and invariably have direct evidence
showing the accused himself or herself resort to active violence or incite others to violence etc.
The judgments do not lay down as an absolute law that the acts showing intention to bring about
public disorder or disturbance of public peace as a chain reaction will not attract penal
consequences for being member of a terrorist gang or organization.
In Asit Kumar Sen Gupta vs State Of Chhattisgarh6 the court said that the Promotion of an
ideology and advocating for different form of Government is always acceptable as it is a valid
means of criticizing the policy of the incumbent Government, however, exciting the people to
armed rebellion, promoting contempt and disrespect for the Government, supporting banned
2
AIR 2011, CRLJ PG NO. 436
3
1994 (3) SCC 569",
4
Ibid at 2
5
AIR 2011, SCC 377
6
AIR 2011, SCC 56

MEMORANDUM ON BEHALF OF THE APPELLANT 12

 organizations in the act of terrorism is never acceptable in our constitutional set up.
Naxal/Maoist's violence is spreading in semi urban areas with the help of people like Sequoi
who are providing umbrella protection as also encouraging the people for violence, instead of
discharging their fundamental duties under Art. 51A of the Constitution . Therefore his
detainment was as per law and he should be further detained till his trial pending in the STPS
case.

1.3. Justice Amar Shergill has links with maoists

Mr Amar Shergill a retired judge and an human rights activists who has wrongly picked up the
cause of Sequoia and other poltical prisoners whose detention is necessary in the interest of
nation, sovereignty and integrity of State.

A.Links with Sequoia and other maiosts terrorists

The accused is having links with Sequoia and other terrorist maiosts which is apparent from his
act of taking up the issue of Sequoia and other poltical prisoners out of which many are the
naxalites who by their acts have created criminal disturbance in the State and as Stated by earlier
Prime Minister Manmohan Singh “Naxalism ris the biggest internal threat to the security of
nation” In Asit Kumar Sen Gupta vs State Of Chhattisgarh7 court said that by exciting the
people to armed rebellion, promoting contempt and disrespect for the Government, supporting
banned organizations in the act of terrorism is never acceptable in our constitutional set up.
Therefore the act of Mr. Amar Shergill is condemned by the State.
In Nazir Khan v. State of Delhi 8the court discussed various definition of terrorism and observed
that “ All criminal acts directed against a along with intended or calculated to create a state of
terror in the minds of particular persons or a group of the general public.” Also “terrosrism is the
unlawful use of force against person or property to intimade or coerce a Governmnet, the
cibilians population or any segement in furtherance of political or social objectives.”9

7
AIR 2011, SCC 56
8
AIR 2003 CRL. 734
9
FEDRAK BUREAU OF INVESTIGATION

MEMORANDUM ON BEHALF OF THE APPELLANT 13

 B. Charges under section 153A and 153B of IPC implicated upon accused is justificable.
Mr Amar Shergill being a retired judge possess good knowledge of the law but by doing such an
act which is againt law and order of the State has acted irresponsibly. Initation of criminal
proceedings against the respondent under section 153A and 153B were quashed in exercise of
jurisdiction under section 482 of CRPC. He created criminal disturbance in the society and
restraints the public law and order of the State, which has raised a grace question on the
capability of the State in preserving peace and order in the society. The act of the accused has
created disharmony between the capitalists and the labour class as also between those who
believed in democratic form of government and those who believed in totalitarian government.

C.Social media post of Mr Shergill is defamatory in nature.

The expression of thought of accused is dangerous to the public interests. Mr Shergill hold a
higher reputation, his words have a scintillating effect on rural masses of Sauramashtha. His
post has created political disturbance by bringing up the debate among different political parties.
Through his facebook post he had trigerred an online movement which has affected the public
tranquility. Mr Aman shergill has lowered the stature of democratic elected government by
online posting following words:
“ The goondas sitting in the central government and various State governments of Praakrit are
so worried about their activities that it is unthinkable that they can remain free, and making
them rot in jail for year after year has become a mainstay of State policy. There is no
independence. The colour of goondas has changed. Earlier we were looted and jailed by white
goondas of Britain, now they are brown and black.”
By calling members of government as ‘goondas’ is an insult to the government and also such
kind of dissent is not acceptable in a democratic State.

1.4. There has been no misuse of UAPA act by the State.

The State has not misused the provisions of U.A.P.A act for silencing the dissent, however it has
used the law against those who behind their dissent have hidden agendas which is threat to
security of State. The provisions of UAPA are deliberately enacted this way so to counter any
form of terrorism existing in our State. The released actiivsts were not convicted merely for
raising an opposition voice but for inciting people. The right guaranted under Art. 21 i.e right to
fair trial has not been taken away from these prisoners. In Mr. Abdul Saboor vs The State Of

MEMORANDUM ON BEHALF OF THE APPELLANT 14

Karnataka 10observe that “ the accused does not have to be set free because there is likelihood of
delay in completion of trial.” Investigation in such cases usually take more time therefore the
procedure is many times delayed but this does not mean that State is not giving them fair trial.
Also the opposition and aggression of people against such arrests become an obstruction in
conduction early trial of the accused.
In light of the abovementioned arguments the counsel most humbly submits that the earlier
detention of these prisoners was justified and they should be detained again in the interest of
larger public good.

2. WHETHER THE PRESENT PETITION IS MAINTAIBLE BEFORE THE

HON’BLE COURT OR NOT?

The Petitioner humbly submits that this petition is not maintainable under Art. 32 in Hon’ble
Supreme Court of Praakrit. and the court have no jurisdiction to entertain the same in the light of
the following arguments:

2.1 Supreme Court does not have the jurisdiction to entertain the instant petition.
The jurisdiction of the Supreme Court under Art. 32 can be invoked only when fundamental
rights have been infringed or violated . 11No question other than relating to fundamental right
will be determined in proceeding under Art. 32. 12 Thus where there is no infringement of
fundamental right or scope for enforcement of any fundamental right the writ petition is not
maintainable on the fragile ground. 13 . The Honorable Court does not have jurisdiction to
entertain the present petition as there is no infringement of fundamental rights of any prisoner by
not recognizing them as political prisoners and not treating them accordingly. It is further
submitted that petitioners have approach the court on frivolous and fragile Grounds.
Infringement of fundamental rights cannot be founded on remote of speculative Grounds 14 . The
present matter is about the State criminal policy in dealing with the prisoners who posses a great
threat to the unity and security of India .

10
AIR 2017, Crl.A.1554 OF 2016
11
Vide The Constitution (forty second) Amendment Act,1976
12
Gopal Das Mohta v .Union Of India, AIR 1955 SC 1.
13
Coffee Bd. v. Joint C.T.O., AIR 1971 SC 870.
14
Baldev Singh Gandhi v. State of Punjab , AIR 2002 SC 1124.

MEMORANDUM ON BEHALF OF THE APPELLANT 15

PIL is not a pill or panacea for all wrongs. In Prisoners Rights Forum v. High Court Of
Judicature At Madras15 the court held that the court entertains a writ petition from a public
spirited person or a social action group for the vindication of Fundamental Rights of a person
who is unable to enforce them because he belongs to a class or group of persons who are at a
disadvantaged position on account of poverty. Disability or other social or economic impediment
and are unable to enforce these rights. There have been, in recent times, increasing instances of
abuse of PIL. Therefore, there is a need to re-emphasize the parameters within which PIL can be
resorted to by a petitioner and entertained by the Court . However in the present case the
prisoner by the petitioner are in no disadvantaged position .
In the case of Northern Corporation v. Union of India16 and Indian Express newspapers Private
Limited(Bombay) v.Union of India 17it was held that for invoking Art. 32 there must be a clear
breach of fundamental right however in the present case there has been no infringement of any
fundamental right. In Shantabai v. State of Maharashtra18 it was held that Art. 32 cannot be
invoked simply to educate the validity of any legislative or administrative action unless it
adversely affect the fundamental rights of the petitioner .
In the case of People Democratic Rights v. Ministry of Home Affair19s it was held that the courts
have the power to give direction to the executive, they are ill equipped to run the administration
or improve the channels of administration. In a Student of Medical College Shimla v.State of
Himachal Pradesh20 it was held that there is a need to recognise the limits of judicial power and
ordering relief in PIL. The aforementioned principle was reinstated by this honorable court in
number of cases.21

2.2 The petitioner has no locus standi to approach the court under Art. 32.
It is humbly submitted that in State of Praakrit only a person acting bona fide and having
sufficient bona fide interest in maintaining action for judicial redress for public injury to put the
judicial machinery in motion and such a person will only have locus standi. However The
present petition has been filed by an opposition leader Mr Kashi Garoor who do not have

15
AIR 2014
16
AIR 1991 SC 764
17
AIR 1986 SC 515
18
AIR 1958 SC 931
19
AIR 1984 Del 268
20
AIR 1985 SC 910
21
Umed Ram v. State of Himachal Pradesh (AIR 1986 SC 847), Centre for PIL v. UOI (2000) 8 SCC 606, P.N.
Thampy Thera v. UOI (AIR 1984 SC 74)

MEMORANDUM ON BEHALF OF THE APPELLANT 16

suffiecient bona fide interest and has no locus standi in the present case . It is humbly submitted
that the rights could be enforced under Art. 32 must ordinarily be the rights of the petitioner
himself who complains of the interaction of such right and approaches the code for relief a
petitioner cannot be heard to complain about discrimination suffered by others. 22 Therefore in
the instant matter the petitioner does not have locus standi to approach the court.
In the case of Simranjit Singh Mann vs Union of India23 the petitioner an acknowledge political
party leader challenges the conviction of two assain convicted for assain of Gen. Vaidya and in
the case Honorable Supreme Court held that petition was not maintainable as the petitioner being
a total stranger to the prosecution having not even been authorised by the Convicts and having
not alleged violation of his own fundamental right has no locus standi to maintain the petition.
Such third party can only be allowed to represent the convicts only if they are under some
disability recognised by the Law. There is no provision which permits an acussed to be
represented by a person like the petitioner. The must not allow its process to be abused by the
politicians. The petitioner has no locus standi to invoke court’s jurisdiction under Art. 32. In The
present petition Mr. Kashi Garoor being a third party and having no authority or recognition by
the prisoners whose violation of rights the petitioner contends .
In Triveniben v. State of Gujara24t the court while developing on the subject observe that a
person acting Bonafide and having sufficient interest in the preceding of public interest litigation
will alone have a locus standi and can approach the court to wipe out violation of fundamental
right and genuine in fraction of statutory provision but not for any personal gain or private profit
or political motive or any oblique consideration.

2.3 The PILis motivated by personal interest therefore not maintainable.

The PIL filed by the petitioner is guided by the personal political interest and in not filed
in bona fide interest.
Chief justice Mukherjee in State of HP v. Umeed Ram Sharma 25observed that “In Public Interest
Litigation cases the most crucial questions for the court is to measure the seriousness of the
petitioner and to see weather is actually the champion of the cause of the person or group he is

22
Chiranjit Lal Chowdhuri v. Union of India AIR 1950 SCR 869.
2323
(1992) 4 scc 653.
24
AIR 1989 SCC 678.
25
AIR 1986 SC 847

MEMORANDUM ON BEHALF OF THE APPELLANT 17

respresnting. The petitioner being a politically interest directed person has hidden poltical
motives.In kishorbhai De Panchal v.Chief Secretary State of Gujarat 26 is the high court
immediately bang the court held that the forum of public interest litigation is not meant for
serving political purpose of solving political problem political problems are to be solved through
political process and not through judicial process the court cannot enter medal with affairs of any
political party indeed it has no jurisdiction to do so.
The Delhi Riot case27offer the following lesson: that Public Interest Litigation should never be
resorted to for the political games by one party or another if quotes starting entering the political
Arena they will cause several and serious damage to the Institution of the PIL . Public Interest
Litigation cannot act as a guise to settle political scores and advance the political gain. 28
Petitioner cannot serve his self interest under the guise of PIL . Remedy in such cases is
refused29.
In the light of abovementioned arguments the present PIL petition filed by Mr. Kashi Garoor is
not maintainable in the Hon’able Supreme court and it should be dismissed.

3. WHETHER THE HIGH COURT HAS CORRECTLY GRANTED DAMAGES

UNDER ART. 226 OF THE CONSTITUTION?
The counsel on behalf of the Kiki news channel most humbly submits that HC of
Sauramashtha has wrongly granted damages to Sequoia and MR. Amar Shergill.under Art.
226 of constitution on grounds of violation of right to be forgotten because there is no such
right under any law existing in State of Praakrit. Therfore HC has erred in law while
granting damages.

3.1 Freedom of media

The strength and importance of media in a democracy is well recognized. Media gets its
freedom under Art. 19 (1) (a) of the Constitution, which confers the freedom of speech and
expression. In a highly mixed society like India, it is essential to have an independent and free
media. The increasing role of media was appropriately put by Justice Learned Hand of the
United Supreme Court when he said that “….the hand that rules the Press, the radio, the screen,
and the far-spread magazines, rules the country.”

26
AIR 2003 Guj 43.
27
Ibid at 33
28
Rajiv Ranjan Singh’Lalan’ & Anr vs. Union of India and Ors 2006(8)SCALE161.
29
SuBhash Kumar v. State of Biha,r AIR 1991 SC 420.

MEMORANDUM ON BEHALF OF THE APPELLANT 18

The existence of a free, independent and powerful media is the cornerstone of a democracy..
Media is regarded as one of the four pillars of democracy. Media plays a vital role in moulding the
opinion of the society and it is capable of changing the whole viewpoint through which people perceive
various events. In Express Newspapers (Bombay) Ltd. V UOI 30 the Supreme Court stated that
“freedom of the press is the heart of social and political intercourse.

3.2 Media trial do not violate the right of fair trial

The media by showing the various reports and shows on Sequoia an Amar Shergill has not
violated the right of fair trial. It has only expressed its freedom given under Art. 19. The right of
people to know is a eminent right and references was made to views of justice MATHEW in
Bennet coleman . co v. union of india31. In the case of Hamdard Dawakhana v UOI,32 It was
opined by the Court that right also includes the right to gain information and knowledge about
matters that are of common interest. Therefore in the instant case people have every right to
know of the both accused and media is just playing its role in providing the same. In Shreya
Singhal v. Union of India 33 court upheld the people’s right to know. The media has an

educative role to play while dispensing this function34.[ 19(1)(A) is not only for the
benefit of the owner of the newspaper or of the editor or jouranalist. In essence it embodies the
people right to know. media interest in the pending cases or court proceedings cannot be equated
with media trial.
In the Bofors Case35, the Supreme Court recounted the merits of media publicity: “those who
know about the incident may come forward with information, it prevents perjury by placing
witnesses under public gaze and it reduces crime through the public expression of disapproval
for crime and last but not the least it promotes the public discussion of important issues.”
In Cases like the Jessica Lall36 and Nitish Katara37 murder cases, which involve high profile and
powerful people as the accused persons, do benefit from such incessant media exposure. Neelam
Katara, mother of the deceased in the Nitish Katara murder case, succeeded in getting a verdict

30
4](1985) 1 SCC 641 at p. 664, para 32
31
Air 1972scc 788
32
8]1960 (2) SCR 671
33
AIR 2015 SCC 567
34
Re: Harijan Singh and Anr.; In Re: Vijay Kumar, (1996) 6 SCC 466, para 10.
35
Kartongen Kemi Och Forvaltning AB v. State through CBI, 2004 (72) DRJ 693.
36
State vs Siddarth Vashisth & Manu Sharma , AIR 2000
37
Vikas Yadav vs State Of U.P. And Another on 26 April, 2011

MEMORANDUM ON BEHALF OF THE APPELLANT 19

from the lower courts due to the support of the media and the public opinion generated through
print and electronic media. Highlighting the merits of the media in the Bofors Case38 The Supreme
Court was of the view that those who know anything about the matter might come forward with
information, it reduces crime through society’s disapproval of certain acts, and most importantly it leads
to a public discussion of important issues.

3.3 There is no fundamental right of right to be forgotten

‘RIGHT TO BE FORGOTTEN’ is a concept whereby a person would have the right to lead an
anonymous life in reference to data retention and digital memory on the internet. It allows
offenders who have served their sentence to object to the publication of information regarding
their crime and conviction in order to ease their process of social integration.

Also, it considers cases involving women in general and highly sensitive cases involving rape or
affecting the modesty and reputation of the person concerned.

This idea was first developed and recognized by France as the “right to oblivion” or droit `a
l’oubli. It has gained prominence since a matter was referred to the Court of Justice of
European Union (CJEU) in 2014 by a Spanish court. In this case Mario Costeja González
had disputed the Google search of his name continuing to show results leading to an auction
notice of his reposed home. The fact that Google continued to make available in its search
results, an event in his past, which had long been resolved, was claimed by González as a breach
of his privacy. He filed a complaint with the Spanish Data Protection Agency (AEPD in its
Spanish acronym), to have the online newspaper reports about him as well as related search
results appearing on Google deleted or altered. While AEPD did not agree to his demand to have
newspaper reports altered, it ordered Google Spain and Google, Inc. to remove the links in
question from their search results. The case was brought in appeal before the Spanish High
Court, which referred the matter to CJEU. In a judgement having far reaching implications,
CJEU held that where the information is ‘inaccurate, inadequate, irrelevant or excessive,’
individuals have the right to ask search engines to remove links with personal information about
them. The court also ruled that even if the physical servers of the search engine provider are
located outside the jurisdiction of the relevant Member State of EU, these rules would apply if
they have branch office or subsidiary in the Member State.

38
KartongenKemiOchForvaltning AB v. State through CBI, 2004 (72) DRJ 693.

MEMORANDUM ON BEHALF OF THE APPELLANT 20

The basis of what has now evolved into this right is contained in the 1995 EU Data Protection
Directive, with Art. 12 of the Directive allowing a person to seek deletion of personal data once
it is no longer required.

Recently, political voices have stressed the need to introduce a right to be forgotten as new
human right. Individuals should have the right to make potentially damaging information
disappear after a certain time has elapsed.

The learned counsel humbly contends on behalf of the KiKi News Channel that there is no “right
to be forgotten” guaranteed anywhere, either under the Constitution of Praakrit or under any
statute. The same can be inferred from a decision laid down by the HC of Gujarat in Dharmraj
Bhanushankar Dave vs. State of Gujarat39. In this case, the petitioner was charged with various
criminal offences, including culpable homicide amounting to murder. He was acquitted by the
Sessions as well as the High Court. The petitioner filed a case under Art. 226 40 praying for
‘permanent restraint of free public exhibition of the judgment’. The petitioners’ chief concern
was that despite the judgment being declared as ‘non-reportable’1441, the copy of the judgment
with his name was available on various legal portals and could be searched on Google. It was
also alleged the same had affected the personal and professional life of the petitioner.

Another argument was, that the Registrar of the court has exclusive control over such orders and
the respondents would have to power over it to openly display them.The judgment was parted in
form of an oral order by the Honourable Mr. Justice R. M. Chhaya. The court dismissed the
petition and held the following:

1. The High Court is a Court of Record

2. The Gujarat High Court Rules, 1993provide that copies of any judgments or proceedings
can be accessed.

39
AIR 2015.
40
The Art. provides for power of the citizens to approach the High Court to exercise its’ jurisdiction to issue orders,
directions or writs.
41
A non-reportable/ unreportable judgment cannot be published in any newspaper or in any journal. If one wants to
cite the same in a lower court, s/he must produce a certified copy.

MEMORANDUM ON BEHALF OF THE APPELLANT 21

 3. The same statute States that only parties to the case can ask for the copies and no other
person can ask for them until an order is given by the Assistant Registrar. An affidavit by
the third party must be accompanied specifying the grounds for obtaining them.

The counsel in light of the above arguments most humbly submits that the HC has erred in law
by recognisng the right to be forgotten as a right under Art.21 and granting damages under 226 to
respondents .

MEMORANDUM ON BEHALF OF THE APPELLANT 22

 PRAYER

In the light of the issues raised, arguments advanced and authorities cited, the Respondent hereby
humbly submits that this Hon’ble Supreme Court of Praakrit may be pleased to:

1. Reverse the release order passed by High Court Passed by Sauramastha and order
immediate arrest of the activists booked under UAPA .
2. PIL filed in the above matter be dismissed.

ANY OTHER ORDER AS IT DEEMS FIT IN THE INTERST OF EQUITY, JUSTICE AND
GOOD CONSCIENCE.

ALL OF WHICH IS RESPECTFULLY AFFIRMED AND SUBMITTED

MEMORANDUM ON BEHALF OF THE APPELLANT 23