The paper is a moot court memorial from the side of respondents for a moot court, Papers of Law

Download The paper is a moot court memorial from the side of respondents for a moot court and more Papers Law in PDF only on Docsity! Team Code: CIM06 CHRIST (Deemed to be University) Pune Lavasa Campus INTERNAL RANKING ROUND 2023 IN THE HON’BLE SUPREME COURT OF INDICA AT NEW DELHI Writ Petition No.: /2023 CIVIL LIBERTIES FOUNDATION (CLF) (Petitioner) V. UNION OF INDICA (Respondent) BEFORE SUBMISSION TO HON’BLE CHIEF JUSTICE AND HIS COMPANION JUSTICES OF THE HON’BLE SUPREME COURT OF INDICA MEMORANDUM ON BEHALF OF PETITIONER 2 MEMORIAL ON BEHALF OF PETITIONER TABLE OF CONTENTS TABLE OF CONTENTS 3 LIST OF ABBREVIATIONS 4 TABLE OF AUTHORITIES 5 STATEMENT OF JURISDICTION 6 STATEMENT OF FACTS 7 STATEMENT OF ISSUES 8 SUMMARY OF ISSUES 9 1. Is Section 8 of the National Security Act (NSA) violative of Article 21 of the Indica Constitution, as it allows prolonged detention without trial and lacks sufficient safeguards against arbitrary detention? 9 2. Do the provisions for preventive detention under the NSA adequately protect the rights of the detained individuals, including the right to be informed of the grounds of detention, the right to legal representation, and the right to challenge the detentio before an independent authority? 9 ARGUMENTS ADVANCED [ISSUE 1] 10 1. Is Section 8 of the National Security Act (NSA) violative of Article 21 of the Indica Constitution, as it allows prolonged detention without trial and lacks sufficient safeguards against arbitrary detention? 10 1.1] Lack of Transparency and Fair Procedure: 11 1.2] Right to be Informed of the Grounds of Detention: 11 1.3] Right to Legal Representation: 12 1.4] Right to Challenge Detention Before an Independent Authority: 13 1.5] Risk of Arbitrary Detention: 14 ARGUMENTS ADVANCED [ISSUE 2] 16 2. Do the provisions for preventive detention under the NSA adequately protect the rights of the detained individuals, including the right to be informed of the grounds of detention, the right to legal representation, and the right to challenge the detention before an independent authority? 16 2.1] The Golden Triangle Rule and Test of Reasonable classification 16 2.2] Right to legal representation in front of an independent authority violated under Section 11(4) of the NSA 17 2.3] Criteria for release at the discretion of the Advisory Board under Section 12(2) of NSA- 19 2.4] Absence of Sunset Clause 19 PRAYER 22 5 MEMORIAL ON BEHALF OF PETITIONER STATEMENT OF JURISDICTION The Petitioner herein has invoked the Writ Jurisdiction of this Hon’ble Court under Article 32 of the Constitution of India. Article 32 read as- “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 clauses (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) The right guaranteed by this article shall not be suspended except as otherwise provided for by this Constitution.” 6 MEMORIAL ON BEHALF OF PETITIONER STATEMENT OF FACTS The Union of Indica has been in a run to make constant efforts to curb the freedom of the citizens of indica merely on the name of national security. The constitutional validity has been absolutely sidelined with the absence of due process of law and by acting arbitrarily. The major infringement of Article 21 has been attempted through the production of National Security Act, which further highlights vagueness and lacks clarity. The sensitivity establishes when there is an absence of clarity in the duration of detention, criteria of release leading to potential abuse of power by the so-called democratic government of indica. The intention of questioning the very democracy of the country comes forth when rights like right to be informed, right to have a legal representation and right to challenge detention before an independent authority are not incentivized. The CLF stands forth to contest and regain the rights of the citizens are in major threat on the name of national security. The CLF condemns the NSA and calls for the complete eradication of the same. 7 MEMORIAL ON BEHALF OF PETITIONER STATEMENT OF ISSUES 1. Is Section 8 of the National Security Act (NSA) violative of Article 21 of the Indica Constitution, as it allows prolonged detention without trial and lacks sufficient safeguards against arbitrary detention? 2. Do the provisions for preventive detention under the NSA adequately protect the rights of the detained individuals, including the right to be informed of the grounds of detention, the right to legal representation, and the right to challenge the detention before an independent authority? 3. 10 MEMORIAL ON BEHALF OF PETITIONER [678 B-C]” Natural justice, or as often referred to as procedural fairness, in day-to-day life, is a fundamental legal principle that seeks to ensure fairness and equity in legal proceedings, including those involving detention or deprivation of rights. The Petitioner wants to highlight in front of this Apex authority the following arguments as to how Section 8 of the above questioned Act questions the ‘principles of natural justice’ and are violative of Article 21 of the Indica Constitution, thus should be declared unconstitutional: 1.1] Lack of Transparency and Fair Procedure: Section 8 of the NSA lacks clarity regarding the duration of detention and the criteria for release, as seen below: “8. Grounds of order of detention to be disclosed to persons affected by the order.— (1) When a person is detained in pursuance of a detention order, the authority making the order shall, as soon as may be, but ordinarily not later than five days and in exceptional circumstances and for reasons to be recorded in writing, not later than 15 [fifteen days] from the date of detention, communicate to him the grounds on which the order has been made and shall afford him the earliest opportunity of making a representation against the order to the appropriate Government. (2) Nothing in sub-section (1) shall require the authority to disclose facts which it considers to be against the public interest to disclose.”3 The council wants to highlight the vagueness in Section 8. As seen above, it stands unclear as to when is ‘as soon as may be, but ordinarily…’ or even ‘earliest opportunity’, maybe. This lack of transparency means that individuals detained under this provision may not have a clear understanding of when they can expect to be released or under what circumstances. In the case of Maneka Gandhi v. Union of India (1978)4, the Supreme Court emphasized that the principles of natural justice require that any law or procedure that affects the rights of an individual must be fair, just, and reasonable. Lack of clarity and transparency in the law can lead to arbitrariness and unfairness, violating these principles. 1.2] Right to be Informed of the Grounds of Detention: 2 Maneka Gandhi v. Union of India, Indian Kanoon, https://indiankanoon.org/doc/1766147/. 3 Section 8 of the National Security Act (NSA). 4 Id. at 1. 11 MEMORIAL ON BEHALF OF PETITIONER One of the key principles of natural justice is the right to be informed of the grounds of detention. Individuals must be provided with reasons for their detention to understand why they are being held. Section 8 of the NSA, does not adequately ensure that individuals are informed of the specific reasons for their detention in a timely and clear manner, as seen above. This tenure varies from five days up to fifteen days, in exceptional circumstances, which too remain undefined by the Act. As the phrase “as soon as may be”, was seen in the above argument (1.1), the NSA fails to elaborate upon the reasonable limits of the time, or even the category of crime for which the detainee is detained. The judgment in A.K. Gopalan v. State of Madras5 was notable for interpreting the phrase "as soon as may be" in a manner that was relatively lenient in favor of the government. The court held that the requirement to inform the detainee of the grounds of detention did not mean immediate communication of the grounds but should be done within a reasonable time. 1.3] Right to Legal Representation: The council would like to highlight that Natural justice also entails the right to legal representation, allowing individuals to have legal counsel during proceedings that affect their rights. Section 8 of the NSA may not provide detained individuals with sufficient access to legal representation, potentially depriving them of a fair opportunity to defend themselves. In Pebam Ningol Mikoi Devi v. State of Manipur6, the government of Manipur imprisoned a person under the National Security Act of 1980 on the grounds that he had links to the radical United National Liberation Front (UNLF). He was found in possession of money that the commander of the Extremists had entrusted to him for extraction. The prisoner argued his position. The Manipur governor both denied it and said he had been arrested. The Supreme Court ultimately heard a case challenging his imprisonment. The detention order was revoked as a result of the Supreme Court's ruling that the grounds for custody and the documents relied upon by the detaining authority have no probative value and are unrelated to the scope, purpose, and intent of the National Security Act. This is a case, wherein the Petitioner wants to highlight how preventive detention substantially impairs individual liberty. Even after detaining the detainee for five days, without informing him regarding the grounds under which he was detained, his right to legal representation along with his right to be informed of the grounds of detention were taken away from him. This 5 A.K. Gopalan v. State of Madras, AIR 1950 SC 27. 6 Pebam Ningol Mikoi Devi v. State of Manipur, [2010] INSC 782. 12 MEMORIAL ON BEHALF OF PETITIONER completely undermines the confidence of many innocent lives around the country, and endangers their guaranteed fundamental rights. The Act provides the ‘appropriate government’, as defined under the questioned Act, with unanimous power, to furnish paperwork and evidence as to how and why the individual in question is detained. While this authority holds the sole power to decide upon the paperwork that is to be presented in front of the appropriate jurisdiction, which was misused by the ‘appropriate government’, in the above case, the same government also has the sole authority to assent to legal representation of the detained individual, and if misused as seen in the case provided above, will undermine the individual’s right to legal representation in front of an independent authority. This power can either make or break the life of the detained individual. Thus, it is suggested to the Government of Indica that documentation must be provided regarding the causes, goals, and conditions of such confinement while making a detention. So as the courts are able to carefully study and review the same, and the individual rights of the detainee are not violated. 1.4] Right to Challenge Detention Before an Independent Authority: The principle of natural justice includes the right to challenge one's detention before an independent and impartial authority. Section 8 of the NSA may not establish adequate mechanisms for individuals to challenge their detention before such an authority, potentially leaving them at the mercy of executive decisions. Another landmark judgment titled as; the Kharak Singh case established the significance of the right to challenge detention before an independent authority. It recognized the importance of an impartial review mechanism to prevent arbitrary exercise of power. With reference to Section 8 of the NSA, the council finds that it lacks provisions for detainees to challenge their detention before an independent authority. This omission leaves detainees vulnerable to the unchecked authority of the executive, thereby jeopardizing the principles established in Kharak Singh. In the case of Sambhu Nath Sarkar v. State of West Bengal (1973)7, the petitioner was detained under the Preventive Detention Act, 19508. He challenged the detention on the grounds that the Advisory Board, which was responsible for reviewing his detention, was not independent and impartial, as its members were appointed by the government. The court held that for the process of preventive detention to be fair and just, the review of detention by the Advisory Board must be free from bias and influenced by any considerations other than those relevant to the case. 7 Sambhu Nath Sarkar v. State of West Bengal, 1973 AIR 1425. 8 The Preventive Detention Act, 1950. 15 MEMORIAL ON BEHALF OF PETITIONER ARGUMENTS ADVANCED [ISSUE 2] 2. Do the provisions for preventive detention under the NSA adequately protect the rights of the detained individuals, including the right to be informed of the grounds of detention, the right to legal representation, and the right to challenge the detention before an independent authority? 2.1] The Golden Triangle Rule and Test of Reasonable classification The council for petitioner humbly submits that the Act concerned fails to meet the challenges of not only Art. 21 but also Art. 19 and 14 which guarantees the fundamental rights of freedom and equality respectively. The landmark judgment of Maneka Gandhi V. UOI11 overruling the view expressed in A.K. Gopalan v. State of Madras12 held that Art. 21 is not exclusive of Art 19, thereby making it mandatory for any legislation prescribing a procedure established by law to deprive a person of personal liberty, that being so, causing no infringement of Art. 21, such legislation must prove the test of Art. 19 and Art. 14 of the Constitution. Advanced in the Difference Principle by John Rawls, some inequalities in the society are allowed, so to uplift the less developed. Similarly, The test of Reasonable Classification puts forth that while Art. 14 prohibits differentiation but it upholds reasonable classification to ensure equality on the lines of equity. This classification must not be discriminatory in nature and must have the pillars of Intelligible differentia (which separates the classified group from other individuals) and Rationale Nexus (the differentia must have a rational relation with the objective of the legislation in question). The Act in question does not have intelligible differentia wherein it separates offenders from non- offenders (of causing threat to national security) but on the other hand this classification is vague as the offenses are not specified. In Ram Sewak v. State of Uttar Pradesh (2022)13 the petitioner contended that he had committed the offence of rape and murder in a secluded area thereby not disrupting public order. Hence, not invoking sections of the National Security Act but under ordinary laws. The Hon’ble Court held that the magistrate as a precautionary measure detained the petitioner with the intuition that such acts might be repeated if the offender was released on bail. The 11 Id. at 1. 12 A.K. Gopalan v. State of Madras, AIR 1950 SC 27. 13 Ram Sewak vs State of Uttar Pradesh, 1997 ACJ 1155 (All) (1998) ILLJ 113 (All) 16 MEMORIAL ON BEHALF OF PETITIONER locus of the commission of offense is of less magnitude but the degree of disruption to public order was of grave importance in deciding this case. Nevertheless, it can be comprehended from the above case that the offenses under the act are exhaustive and not explicitly mentioned. The object sought by the act is: “To provide for preventive detention in certain cases and for matters connected therewith” For the differentiation to have Rationale Nexus with the objective of the act, which in itself is ambiguous, devises issues which are left open to interpretation concerning certain cases and matters connected therewith retaining scope of misuse by authorities. 2.2] Right to legal representation in front of an independent authority violated under Section 11(4) of the NSA Although the NSA, approves and can make one or more than one Advisory Boards as required by an ‘appropriate government’, under Section 11 given as below: “11. Procedure of Advisory Boards.— (1) The Advisory Board shall, after considering the materials placed before it and, after calling for such further information as it may deem necessary from the appropriate Government or from any person called for the purpose through the appropriate Government or from the person concerned, and if, in any particular case, it considers it essential so to do or if the person concerned desires to be heard, after hearing him in person, submit its report to the appropriate Government within seven weeks from the date of detention of the person concerned.”14 The Petitioner wishes to put forth this argument that although the Advisory Board consists of impartial and reputed judges of the High Courts, it cannot be denied that there would exist a bit of executive bias in the minds of the same judges. To top this, the basic right of legal representation in front of an independent authority is denied to the individual detained, as under Section 11(4) of the NSA. In Nand Lal v. State of Punjab15, an order of detention made under Section 3 of the Prevention of Black marketing and Maintenance of Supplies of Essential Commodities Act, 1982, was held 14 National Security Act, 1980, § 11(1). 15 Nand Lal v. State of Punjab, 1981 AIR 2041, 1982 SCR (1) 718. 17 MEMORIAL ON BEHALF OF PETITIONER to be violative of Article 21 on the ground that procedure adopted by Advisory Board in allowing legal assistance to the State but denying such assistance to the detenue, was both arbitrary and unreasonable and thus violative of Art. 21 read with Art. 14 of the Constitution. Although under the National Security Act, the detainee had no right to legal assistance, as given under Section 11(4), in the proceedings before the Advisory Board yet it did not preclude the Board to allow such assistance to the detainee when it allowed the same to the State. In Ranveer Raman v. State of Madhya Pradesh, the petitioner had been detained under the act in question on the basis that four cases of criminal nature were registered against him. The petitioner argued that he was not convicted in any of the above cases. The detention was made on account that the detainee was involved in criminal activity and was a prejudice to public order. The court observed that the offenses charged upon the petitioner were bailable and the petitioner had been detained merely on the basis of conjecture. “Section 11(4)- Nothing in this section shall entitle any person against whom a detention order has been made to appear by any legal practitioner in any matter connected with the reference to the Advisory Board; and the proceedings of the Advisory Board and its report, excepting that part of the report in which the opinion of the Advisory Board is specified, shall be confidential.”16 Similarly, in the Ratilal Bhanji vs State of Maharashtra (1979)17 case, the petitioner was detained under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974. The key issue before the court was whether the detained person had the right to be represented by legal counsel during the Advisory Board proceedings, which were part of the process for reviewing the detention. The Supreme Court, in its judgment, held that the right to consult and be defended by a legal practitioner is an integral part of the principles of natural justice. The court emphasized that this right was fundamental and could not be denied to a detained person during the Advisory Board proceedings or any other stage of preventive detention, as the proceedings before the Advisory Board have a direct bearing on the liberty of the detainee. However, as seen under Section 11(4) of the NSA, the detainee is not even given the basic right of legal representation in front of the Advisory Board under the said Act. This provision is discriminatory, while taking the Ratilal Bhanji case as a precedent. 16 National Security Act, 1980, § 11(4). 17 Ratilal Bhanji v. State of Maharashtra, 1979 AIR 94. 20 MEMORIAL ON BEHALF OF PETITIONER 4. Prevention of Terrorism Act (POTA), 200223: The Prevention of Terrorism Act (POTA), designed to counteract terrorism and its attendant threats, was initially bereft of a sunset clause. Notably, POTA faced criticism stemming from alleged misuse and human rights violations. This necessitated a reevaluation of its necessity within the legal landscape. Consequently, in 2004, the Government of India took the decisive step to repeal POTA, thereby effectively expunging it from the corpus of Indian legislation. The discussion above illustrates the variable presence or absence of a sunset clause in preventive detention laws, predicated on the specific law's nature and historical context. These clauses are fundamentally introduced to maintain a harmonious equilibrium between national security imperatives and the preservation of individual civil liberties. The Petitioner, cognizant of the necessity for powers such as those conferred by the National Security Act (NSA), recognizes the need to ensure their judicious exercise. Recent instances have underscored the potential for these powers to be misused or applied excessively, leading to infringements upon civil liberties, as evidenced in the preceding case laws. Consequently, the Petitioner emphatically highlights the imperative of incorporating a sunset clause within the framework of the NSA. The Petitioner contends that the integration of a sunset clause within the NSA would foster accountability and transparency in the deployment of NSA powers. It would impose an obligation upon the government to provide justifications supported by evidence for the extension or renewal of the law, thereby minimizing the potential for the abuse or misuse of these powers. As the judicial and legislative history demonstrates, the inclusion of sunset clauses is an essential instrument for upholding the principles of justice, fairness, and reasonableness, while ensuring that the state retains the means to protect national security. Thus, the Petitioner requests this Apex authority to induce a sunset clause within this rigid act, as there is no scope of improvement within the same, and can become a cause of harm towards the detainee’s civil rights, as should be guaranteed by the Indica Constitution. 23 Prevention of Terrorism Act, 2002 21 MEMORIAL ON BEHALF OF PETITIONER PRAYER Wherefore, in light of the issues raised, authorities cited and arguments advanced, the Hon’ble Supreme Court of Indica be pleased to: 1. Evaluate whether the NSA's provisions meet the standards of reasonability while assessing their constitutionality (or not). 2. The CLF calls for declaration of eradication of the NSA completely since it does not comply with the constitution. 3. The Respondents intend to infringe upon the personal liberties of the citizens of Indica through the ordinance which is questionable to Constitutional validity. 4. There has been an intent to harm the fundamental rights in the name of national security which is illegitimate and vague. AND/OR Pass any other order it may deem fit, in the interest of Justice, Equity and Good Conscience. All of which is most humbly and respectfully submitted. Sd/- ------------------------------------- COUSEL FOR PETITIONER