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IN THE

SUPREME COURT OF PUNYABHUMI

Mr. Anna Godbole and Punyabhumi for Transparency


Applicant

versus

UNION OF PUNYABHUMI
Respondent

MEMORIAL ON BEHALF OF THE RESPONDENT

TABLE OF CONTENTS

A.
Index of Authorities..................................................................................................................I
B. Synopsis of Facts...............................................................................................................VI
C. Questions Presented.......................................................................................................VIII
D. Summary of Arguments...................................................................................................IX
E. Arguments Presented..........................................................................................................1
ISSUE 1: WETHER RIGHT TO LIFE INCLUDES RIGHT
1.1

TO

DIE?.......................................1

WIDER INTERPRETATION OF ARTICLE 21................................................................1

1.2

CONSTITUTIONAL

VALIDITY

OF

SECTION

309..3
1.3

LAW

COMMISSION

OF

INDIA

..

.6
ISSUE 2: WHETHER HUNGER STRIKE IS A CRIMINAL OFFENCE .7
1.1 HUNGER

STRIKE UNDER

ARTICLE 309..

7
1.2 CASES FOR HUNGER STRIKE
8
ISSUE 3; WHETHER THE STATE
FREEDOM

AND

HAS

PRIVELIGE

POWER

TO PUT

GIVEN

RESTRICTION
UNDER

ON THE

ARTICLE

19 ?..........................................................9
1.1 CONSTITUTIONAL VIEW OF ARTICLE 21..9
1.2 ARTICLE 21 CAN NEVER BE INFRINGED .10

-MEMORIAL ON BEHALF OF THE RESPONDENT-

3
PRAYER................................................................................................................................129

-MEMORIAL ON BEHALF OF THE RESPONDENT-

INDEX OF AUTHORITIES
Indian case laws cited

A.K Gopalan v State of Madras

Bijoe Emmanuel v State of Kerela, AIR 1987 SC 748

Chairman Railway Board v Chandrima Das, AIR 2000 SC 988

Commissioner of HRE v Lakshmindra, AIR 1954 SC 282

Chintamans Rao v State of M.P, AIR 1951 SC 118 (121, 122)

Francis Corailie v Union Territory Delhi, AIR 1981 SC 746

Gulam v State of U.P, AIR 1981 SC 2198.

Gadela Satchidanand Murthy v Endownments Department, AIR 2007 SC 1917

Govindlaji v State of Rajasthan, AIR 1963 SC 1638,

Haradhan Saha v State of W.B, AIR 1974 SC 2154,

Himatlal v Police Commissioner, AIR 1975 SC 87

John Martin v State of W.B, AIR 1975 SC 775

Kartar Singh v State of Punjab, (1994) 3 SCC 569.

Konavalov v Commandar, Coast Guard Region, (2006) 4 SCC 620,

Kehar Singh v Union Of India, AIR 1989 SC 653,

Kharak Singh v State of Uttar Pradesh, AIR 1963 SC 1295,

Madhu Limaye v District Megistrate, AIR 1971 SC 2486.


Menka Gnadhi v Union Of India, 1978 AIR (SC) 597

National Human Rights Commission v State of Arunanchal Pradesh, (1996) 1 SCC


742

Olga Tellis v Bombay Municipal Corporation, AIR 1986 SC 180.


, Pogakula laxmi Reddy v Principle Secretry of Government of A.P, AIR 1997 A.P 6
at 11.
Ratial Premchand v State of Bombay, AIR 1954 SC 388

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II

Ramsharan v Union of India, AIR 1989 SC 549

Ramanuja v State of Tamil Nadu, AIR 1972 SC1586.


Shirur Mutt v Commissioner, (1952) 1 MLJ 557 (587).
State of A.P v Challa Ramakrishna Reddy, AIR 2000 SC 2083,
Satwant Singh v A.P.O, (1967) 2 SCR 526

Shantisar Builders v Narayan Khimlal Totame, AIR 1990 SC 630

Supdt Central Jail v Ram Manohar Lohiya, AIR 1960 SC 633

Sarabnanda Sonawal v Union Of India, AIR 2005 SC 2920

, State of H.P v Umed Ram, AIR 1986 SC 847.

English case law cited

United State v Cruikshank, (1876) 92 U.S 542.

Indian case laws referred

Arunanchal Nadar v State of Madras, AIR 1959 SC 300 (303),


All India Bank Employees Association v N.I Tribunals, AIR 1962 SC 171
Abdul Rahim v State of Bombay, AIR 1960 SC 1315
Additional Seceretary to Government of India v Alka Subhash Godia, 1992 (Supp-1)
SCC 496
Akadasi v State of Orrisa, AIR 1963 SC 1047
ADM v Shivkant Shukla, AIR 1976 SC 1207
Babu Ram v Brij Nath, AIR 1962 SC 1476
Babulal Parate v State of Maharashtra, AIR 1961 SC 884
Bishambar Dayal Chandra Mohan v State of U.P, AIR 1982 SC 33
Bharat Kumar K Paticha v State of Kerela, AIR 1997 Ker 292
Cooverjee v Excise Commissioner, AIR 1954 SC 220
Dadu v State of Maharashtra, (2000) 8 SCC 437
Dwarka Prasad Lakshmi Narain v State of U.P, AIR 1954 SC 224
District Registrar and Collector, Hyderabad v Canara Bank, AIR 2005 SC 186
E.R.E Congress v General Manager, AIR 1965 Cal 389
Ebrahim Vazir v State of Bombay, AIR 1954 SC 229
Faruk v State of M.P, AIR 1970 SC 93
Francis v Union Territory, AIR 1981 SC 746
Glass Chatons Importers and Users Association v Union Of India, AIR 1961 SC 1514
Govind Singh v State of M.P, AIR 1975 SC 1378
Harnam Singh v State R.T.A, AIR 1954 SC 190
Harak Chand v Union Of India, AIR 1970 SC 1453
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III

Harshankar v Dy, Excise & Taxation Officer, AIR 1975 SC 1121


Hardhan Saha v State of W.B, AIR 1975 SC 179
Himmatlal v Police Commissioner, AIR 1975 SC 87
Hussainara v Home Seceretery, AIR 1979 SC 1360
Indredeo Singh v State, AIR Patna 242
Indrajeet v State of U.P, AIR 1979 SC 1867
J. Farnandez & Co. v Chief Controller, Import & Export, AIR 1975 SC 1208
Javed v State of Haryana, (2003) 8 SCC 369
Kameshwar Prasad v State of Bihar, AIR 1962 SC 1166
Kathi Raning Rawat v State of Saurashtra, AIR 1952 SC 123
Kadra v State of Bihar, AIR 1981 SC 939
Khudi Ram Das v State of W.B, AIR 1975 SC 550
Manohar Lal v State of Punjab, AIR 1961 SC 418
Maharashtra Ekta Hawkers Union v Municipal Corporation, Greater Bombay, AIR
2004 SC 416
Motilal v State of U.P, AIR 1951 SC 257
M.C Mehta v Union of India, AIR 1998 SC 2963
M.P. Lohia v State of W.B., AIR 2005 SC 790
Murli S. Deora v Union of India, (2001) 8 SCC 765
N.B Khare State Of Delhi, AIR 1950 SC 211
O.K Ghosh v Joseph, AIR 1963 SC 812
O.K Aehudan Nair v Union Of India, AIR 1976 SC 1179
OM Kumar v Union of India, AIR 2000 SC 3689
Pathuma v State of Kerela, AIR 1978 SC 771
P.P Enterprises v Union Of India, AIR 1982 SC 1016
Pramod Malhotra v Union of India, AIR 2004 SC 3338
Parbhani Transport Cooperative Society Ltd v RTA Aurangabad, AIR 1960 801
Poolpandi v Supretendent, AIR 1992 SC 1795
Railway Board v Niranjan Singh, AIR 1969 SC 966
Raja Kulkarni v State Bombay, AIR 1951 Bom 106
Raghubar Dayal v Union Of India, AIR 1962 SC 263
Ram Jawaya v State of Punjab, AIR 1955 SC 549
Ramdhandas v State of Punjab, AIR 1961 SC 1559
R.C Cooper v Union of India, AIR 1970 SC564
State of Madras v G Row, AIR 1952 SC 196
Swadeshi Industry v Workmen, AIR 1960 SC 1258
State Of M.P v Bharat Singh, AIR 1967 SC 1170
State of Maharashtra v Prabhakar, AIR 1966 SC 424
State of Maharashtra v Chandrabhan, AIR 1983 SC 803
State of Maharashtra v Basantibai, AIR 1986 SC 1466
State of U.P v Kaushalya, AIR 1964 SC 416
State of Gujrat v Mirzapur Moti Kureshi Kasab Jamat, AIR 2006 SC 212
State of Bihar v Smt. Shailabala Devi, AIR 1952 SC 329
State of A.P v Challa Ramkrishna Reddy, AIR 2000 SC 2083
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IV

State of W.B v Anwar Ali Sarkar, AIR 1952 SC 123


Santosh Singh v Delhi Administration, AIR 1973 SC 1091
Sambhu Nath Sarkar v State of W. B, AIR 1973 SC 1425
Sohan Singh v New Delhi Municipal Committee, AIR 1989 SC 1988
Sudhir Kumar Commissioner of Police, AIR 1966 SC 740
Sunil Batra v Delhi Administration, AIR 1978 SC 1675
Sunila Faluchand Saha v Union of India, AIR 2000 SC 1023
T.B Ibrahim v Rev. Regional Transport Authority, AIR 1953 SC 79
Triveniben v State of Gujrat, AIR 1989 SC 1335
Zahira Habibullah H. Sheikh v State of Gujrat, AIR 2004 SC 3114

Books Referred

DD Basu, Commentary on the Constitution of India, 8th Edition, Vol 3, Lexis Nexis
Butterworth Wadhwa Nagpur

DD Basu, Introduction to the Constitution of India, 20th Edition Reprint 2010, Lexis
Nexis Butterworth Wadhwa Nagpur

DD Basu, Shorter Constitution of India, 14th Edition 2010, Vol 1, Lexis Nexis
Butterworth Wadhwa

Dr. Ashok Dhamija, Need to amend Constitution and Doctrine of Basic Feature, 1st
Edition 2010, Lexis Nexis Butterworth Wadhwa

Dr. C.D Jhas Judicial Review of Legislative Acts, 2nd Edition 2009, Lexis Nexis
Butterworth Wadhwa

Arvind P Datar on Constitution of India, 2nd Edition 2010 Vol 1 & 2, Lexis Nexis
Butterworth Wadhwa

Justice B.P Benarjee P a g e | IVWrit Remedies, 4th Edition Reprint 2008, Lexis Nexis
Butterworth Wadhwa

M.P Jain, Indian Constitutional Laws, 6th Edition 2007, Vol 1, Lexis Nexis
Butterworth Wadhwa

M.P Jain Outlines of Indian Legal and Constitutional History, 6th Edition Reprint
2009, Lexis Nexis Butterworth Wadhwa

M.P Jain Principles of Administrative Laws, 5th Edition Reprint 2009 Vol 1, Lexis
Nexis Butterworth, Nagpur

-MEMORIAL ON BEHALF OF THE RESPONDENT -

P.K Majumdar,R.P Kataria, Commentary on the Constitution of India, 10th Edition Vol
1, Jain Law House

Ranbir Singh & A. Lakshminath Constitutional Laws, 2006, Lexis Nexis Butterworth
Wadhwa

Venkat Iyer Citizens Right and the Rule of Law: Problems and Prospects Essay in
Memory Justice JC Shah, 2008, Lexis Nexis Butterworth Wadhwa

Dictionaries

P. Ramanatha Aiyar: The Law Lexicon, Second Edition, Reprint 2008, Justice Y. V.
Chandrachud, Lexis Nexis, Butterworths, Wadhwa Nagpur.

Brooms Legal Maxims, 10th Edition, Universal Law Publishing Co.

Dr. A. R. Biswas, 3rd edition 2008, Wadhwa, Nagpur

Whartons Law Lexicon, 15th edition, Universal Law Publishing Co.

K.J. Aiyars Judicial Dictionary, 14th edition, Lexis Nexis, Butterworths, Wadhwa,
Nagpur

-MEMORIAL ON BEHALF OF THE RESPONDENT -

VI

SYNOPSIS OF FACTS

1.
2.
3.
4.

Punyabhumi is a federal democratic republic country like India.


Punyabhumi does not have an efficient anti-corruption law.
The political class is not willing to make a strong legislation to remove corruption.
A civil society group called Punyabhumi for transparency has been running a

campaign make a effective anti-corruption law.


5. The leader of Punyabhumi for transparency and social activist Mr. Anna Godbole
went on to strike on until there demand were met by union government 2Oct 2010 in
Raj-Dhani, Anna adopted Non-violence. People supported Anna.
6. On17th Oct 2010 government warned the member of Punyabhumi for transparency to
end the strike.
7. On19th Oct 2010 State government police arrested Anna under section 309 of penal
code.
8. Mr. Anna was charged by the trial court with attempt to commit suicide, and
convicted.
9. His conviction was upheld by the High court.
10. Against this, he filed a special leave petition, under Article 136 of the constitution, in
the supreme court of Punyabhumi.
11. He challenged the validity of section 309 of the penal code as violative of his
fundamental right to equality and life and personal liberty.

12. Petition under article 32 was filed by Punyabhumi in Supreme court against State
government and union government for stopping peaceful agitation infringing
fundamental rights under article 19 and 20 of the constitution.

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VII

QUESTIONS PRESENTED

1. WHETHER RIGHT TO LIFE INCLUDES RIGHT TO DIE?

2. WHETHER HUNGER STRIKE IS A CRIMINAL OFFENCE?

3. WHETHER THE STATE HAS POWER TO PUT RESTRICTION ON THE FREEDOM AND
PRIVILEGE GIVEN UNDER ARTICLE 19 OF THE CONSTITUTION?

-MEMORIAL ON BEHALF OF THE RESPONDENT -

VIII

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IX

SUMMARY OF ARGUMENTS

ISSUE 1: WHETHER RIGHT TO LIFE INCLUDES RIGHT TO DIE?

Wider Interpretation Of Article 21

Constitutional Validity Of Section 309

Law Commission Of India

ISSUE 2: WHETHER HUNGER STRIKE IS A CRIMINAL OFFENCE?

Hunger Strike Under Section 309

Cases For Hunger strike

ISSUE 3: WHETHER THE STATE HAS POWER TO

PUT

RESTRICTION ON THE FREEDOM

AND PRIVILEGE GIVEN UNDER ARTICLE 19 OF THE INDIAN CONSTITUTION?

Article 19

Restriction over Article 19

-MEMORIAL ON BEHALF OF THE RESPONDENT -

ARGUMENTS PRESENTED

ISSUE 1: WHETHER RIGHT TO LIFE INCLUDE RIGHT TO DIE?

1.1

WIDER INTERPRETATION OF ARTICLE 21: A very fascinating development in the


Indian constitutional jurisprudence is the extended dimension given to Article 21 by
the Supreme Court in the post-Maneka era. Since then, Article 21 has proved to be
multi-dimensional. This aspect of Art. 21 are brought up by many judicial
pronouncements. This right is inalienable and is inherent in us. It cannot and is not
conferred upon us. This vital point seems to elude all those who keep on clamoring
for the "Right to die. That means that every individual has a fundamental freedom to
choose not to live. On this issue the stance taken by the judiciary is unquestionable.
The main question arises is that whether right to life include right to death.
First time it came for consideration before Bombay High Court in Maruti Shripati
Dubai1 and struck down section 309 of Indian Penal Code, as unconstitutional
vide Article 21 of the constitution which guarantees right to life and personal liberty.
The court said that right to life include right to end ones life if one so desires. It
was pointed out that right to life has both its positive as well as negative aspects. To
put it positively it would include a right to die, or to terminate ones own life. The
blanket prohibition on right to die on pain of penalty, it was pointed out is not
reasonable.

Maruti Shripati Dubai v. State of Maharashtra, 1987 Cr. LJ 743 ( Bom.)

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Justice P.B. Sawant: If the purpose of the prescribed punishment is to prevent the
prospective suicides by deterrence, it is difficult to understand how the same can be
achieved by punishing those who have made the attempts. Those who make the
suicide attempt on account of mental disorder requires psychiatric treatment and not
confinement in the prison cells where their condition is bound to be worsen leading to
further mental derangement. Those on the other hand, who makes a suicide attempt on
account of actual physical ailments, incurable disease, torture (broken down by
illness), and deceit physical state induced by old age or disablement, need nursing
home and not prison to prevent them form making the attempts again. No deterrence
is going to hold back those who want to die for a special or political cause or to leave
the world either because of the loss of interest in life or for self- deliverance. Thus in
no case does the punishment serve the purpose and in some cases it is bound to prove
self defeating and counterproductive2.
Further in 1985, Delhi High Court in sanjay kumar 3 while acquitting a young boy who
attempted to commit suicide by consuming Tik Twenty strongly advocated for
deletion of section 309, I.P.C. from the statue book and held that the continuance of
section 309 of the Indian Penal Code is an anachronism unworthy of human society
like ours. Instead of sending the young boy to a psychiatric clinic society, gleefully
(happily) sends him to mingle with criminals.
Medical clinics [are needed] for such social misfits; but police and prison never 4.
Further, this issue came before Supreme Court in P. Rathinam vs. Nagbhusan patnaik 5
in this case SC upheld the verdict given by Bombay High Court in Maruti Sripati
2
3
4
5

Ibid, para 20
State v. sanjay kumar, 1985 Cr. LJ
State v sanjay kumar, 1988 Cr.LJ 549(AP)
P. Rathinam vs Union of India, AIR 1994 SC 1844

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Duba and held that a person has right to die, therefore section 309 of the IPC was
violate of Article 21, hence it is void. A person cannot be forced to enjoy right to life
to his detriment, disadvantage or disliking. The 'right to live' in Article 21 of the
Constitution includes the 'right not to live. The court went on to say that o person who
attempts to commit suicide does not deserve prosecution because he has failed. There
can be no justification to prosecute sacrifices of life.
In this regard eminent lawyer Ram Jethmalani says The right to die is a part of a
wider concept of liberty. The whole nation of the state controlling your life and death
is grotesque. Equally radical is Dr Appa Ghatate, Supreme Court lawyer who agrees,"
The right to die should be included in the Indian Constitution as a fundamental right.
The very idea of the state controlling your life is absurd."

1.2

CONSTITUTIONAL VALIDITY OF SECTION 309: Whoever attempts to commit suicide


and does any act towards the commission of such offence, shall be punished with
simple imprisonment for a team which may extended to one year or with fine or both. 6
Mr. V. S. Deshpande after his retirement as Chief Justice of Delhi High Court 7,
referring to what had been held by this Court regarding the scope of Article 21, took
the view that if Section 309 is restricted in its application to attempts to commit
suicide which are cowardly and which are unworthy, then only this section would be
in consonance with Article 21, because, if a person having had no duties to perform to
himself or to others when he is terminally ill, decides to end his life and relieve
himself from the pain of living and the others from the burden of looking after him,

Sec 309 of IPC K.D Gaur page no. 551


Deshpande VS "To be or not to be" SCC (Journal section) 1984; 3: 10 - 15 quoted in P. Rathinam v Union of
India (1994)
7

-MEMORIAL ON BEHALF OF THE RESPONDENT-

prosecution of such a person would be adding insult to injury and it was


asked:should a court construe section 309 IPC to apply to such cases?
In one of the case accused poured kerosene on his body and attempted to commit
suicide and it was proved that the accused after receiving head injury in a road
accident had started showing abnormal behaviour. Therefore before the start of case
the accused challenged the vires of section 309 and high court declared section 309
ultra vires the constitution. On appeal SC set aside the order of High Court and
following the decision in Lokendra Singh v. state of M.P.8 upheld the validity of
section 309 and said the criminal case initiated on charge of attempt to commit suicide
required to be decided on merit. However in this case the Supreme Court took the
lenient and sympathetic view and quashed the criminal proceedings and directed the
accused should be treated sympathetically9. The accused in another had jumped into
the well after throwing her children inside the well but nobody had seen her doing
this. It was held that her conviction was liable to be set aside 10.The accused wanted to
voluntarily terminate his life as mission of his life was completed and he had led a
successful life. It was held that it would attract the provisions of section 306 and 309
as the same amounted to suicide. The court was of the opinion that no distinction
could be made between the suicide as ordinarily understood and the right to
voluntarily put an end to ones life11

A revising author has criticised this view. In view of the phraseology of Art, 21, it is
arguable that the inhibition against deprivation of life and personal liberty is general.
Not only the state but also an individual is under constitutional obligation not to take
8
9

1996 Cr LJ 1660 (SC)


] State of Maharashtra v. Maruti Sripati Dubal, 1996 Cr LJ 4457(SC)

10
11

. Kavita v. state of tamilnadu 1998 Cr. LJ 3624


C.A. Thomas Master and etc. v. Union of India and ors. 2000 Cr. LJ 743

-MEMORIAL ON BEHALF OF THE RESPONDENT-

away human life except by the procedure established by law. This individual may also
be the victim himself. Read in this backdrop commission of suicide is a breach of
fundamental rights. And there is no question of waiver of fundamental right. A
completed act of suicide may remove the author of the breach beyond the reach of
law, but attempted violation may be brought to justice through section 309, I.P.C. 12
However, in 1996, a five judge constitutional bench of the apex court in Gian Kaur v.
State of Punjab13 overruled its earlier decision of 1994 in P.Rathinam/ Naghbhusan
patnaik14 and held that right to die is not a part of the 'right to life' . The apex court
further held that section 306, I.P.C. as constitutional and said that right to life does
not include right to die. Extinction of life is not included in protection of life. The
court further went on to say that section 306 constitute a distinct offence and can exist
independent of section 309, I.P.C.

As regards section 309, I.P.C. is concerned, the court said that the right to life
guaranteed under Article 21 of the Constitution did not include the right to die or
right to be killed and therefore an attempt to commit suicide under section 309,
I.P.C. or even abetment of suicide under section 306, I.P.C., are well within the
constitutional mandated, and are not void or ultra virus.15
12

Right to die- A fundamental right by A.N. SAHA, 1987 Cr. LJ ( Journal) 70.

13

Gian Kaur v. state of Punjab, AIR 1994 SC 1844

14

AIR 1994 SC 1844, paras 111, 112


Ibid

15

-MEMORIAL ON BEHALF OF THE RESPONDENT-

1.3

LAW COMMISSION OF INDIA: The chairman of the Law Commission of India, Dr.
Justice AR. Lakshmanan, former Supreme Court judge has submitted 210th report to
the Union Law minister, Dr. Hans Raj Bhardwaj, recommending humanization and
decriminalisation of attempt to suicide. A brief look at the actions undertaken to
revise Article 309 suggest that in its 42nd Report, 1971, the commission
recommended, inter alia, repeal of section 309. . It is wrong to say that the Indian
penal code is a modern code in every possible sense. Laws are made for the people
and it should be change to meet the aims and aspiration of the changing society.
Ultimately, the aim should be to evolve a consensual and conceptual model effectively
handling the evils without sacrificing human rights. Therefore section 309 should be
deleted from the Indian penal Code because as mentioned in Maruti Shripati Dubai
that No deterrence is going to hold back those who want to die for a special or
political cause or to leave the world either because of the loss of interest in life or for
self- deliverance. Thus in no case does the punishment serve the purpose and in some
cases it is bound to prove self defeating and counter productive. In any case a person
should not be forced to enjoy the right to live to his detriment, disadvantage, and
disliking. Further, the Right to life under Art. 21 should not include right to die
because this provision might increase the rates of suicides in the country and
moreover the Right to life is a natural right embodied in Art. 21 but suicide is an
unnatural termination or extinction of life and, therefore incompatible and
inconsistent with the concept the concept of right to life.

The Supreme Court has set aside its earlier judgment in P. Rathinam/ Nagbhushan
Patnaik v. Union of India, JT 1994 (3) SC 392, wherein the Court had struck down
-MEMORIAL ON BEHALF OF THE RESPONDENT-

section 309 as unconstitutional. In a country where one-half of its population still live
below the poverty line, the right to die by suicide cannot be granted to any person.
Article 21 of the Constitution, which gives right to life and personal liberty, by no
stretch of imagination can be said to impliedly include right to death by committing
suicide. The section is also not violative of article 14. There is no requirement of
awarding any minimum sentence. The sentence of imprisonment or fine is not
compulsory but discretionary; Gian Kaur v. State of Punjab, JT 1996 (3) SC 339

ISSUE 2: WHETHER HUNGER STRIKE IS A CRIMINAL OFFENCE?

1.1

HUNGER STRIKE UNDER SECTION 30916: Hunger strike which is resorted to at


times for getting the demand of strikers fulfilled, poses some difficulties in this
regards. This cases present difficulties in determining whether the intention of the
hunger striker is to kill himself or simply to force the authority to fulfill his demand.
The right to strike in the Indian constitution set up is not absolute right but it flow
from the fundamental right to form union. As every other fundamental right is subject
to reasonable restrictions, the same is also the case to form trade unions to give a call
to the workers to go on strike and the state can impose reasonable restrictions.

In All India Bank Employees' Association v. National Industrial Tribunal and others ,
the Court specifically held that even very liberal interpretation of sub-clause (C) of
clause (1) of Article 19 cannot lead to the conclusion that trade unions have a
guaranteed right to an effective collective bargaining or to strike, either as part of
collective bargaining or otherwise.
16

Section 309 of I.P.C , K.D Gaur, pg no. 552

-MEMORIAL ON BEHALF OF THE RESPONDENT-

Thus, there is a guaranteed fundamental right to form association or Labour unions


but there is no fundamental right to go on strike. Under the Industrial Dispute Act,
1947 the ground and condition are laid down for the legal strike and if those
provisions and conditions are not fulfilled then the strike will be illegal.

1.2

CASES FOR HUNGER STRIKE:

In Ram Sunder Dubey vs State17:- Signs of starvation have set in. His condition needs
careful watching. In case the signs aggravate, which is likely if he does not take any
nourishment, danger to life will increase, even resulting in death." But this could only
mean that if the fast had been persisted in for some days more, it would probably have
proved dangerous: symptoms noted do not suggest that on 1-3-1960 the condition of
the accused was at all critical. Modi in his Medical Jurisprudence and Toxicology
(13th Edition, 1959, p. 185) states : "Death occurs in 10 to 12 days if both water and
food are totally deprived. If food alone is withdrawn life may be prolonged for a long
period, say six to eight weeks or even more." The accused had only been fasting for
three days when he was taken away by the police, and it cannot be said that at that
stage his life was in danger. And no evidence has been led to show that there was any
further deterioration in his condition after 1-3-1960.

Irom Sharmila :- Irom Sharmila who has been on a hunger strike championing for the
cause of removing the draconian AFSPA from Manipur has been booked under
section 309 IPC for the offence of attempting suicide. Reading the whole act, we can
see that it says that doing any act towards the commission of such offense comes
under this section and is thus punishable under law. Irom Sharmila had vowed to go
on a "hunger strike unto death" and thereby such an action on her part to go for a

17

AIR 1962 All 262


-MEMORIAL ON BEHALF OF THE RESPONDENT-

hunger strike unto death has been taken to be an act towards the commission of an
offense under section 309 IPC.

ISSUE 3: WHETHER THE STATE HAS POWER TO

PUT

RESTRICTION ON THE FREEDOM

AND PRIVILEGE GIVEN UNDER ARTICLE 19 OF THE INDIAN CONSTITUTION ?

1.1

ARTICLE 1918:
All citizens shall have the right
(a) to freedom of speech and expression;
(b) to assemble peaceably and without arms;
(c) to form associations or unions;
(d) to move freely throughout the territory of India;
(e) to reside and settle in any part of the territory of India; and
(f) omitted
(g) to practise any profession, or to carry on any occupation, trade or business

1.2

RISTRICTION OVER ARTICLE 19 : 19Article 19(1) (a) guarantees to Indian citizens the
right to freedom of speech and expression. It does not delimit that right in any manner
and there is no reason, arising either out of interpretational dogmas or pragmatic
considerations, why the courts should strain the language of the Article to cut down
the amplitude of that right. The plain meaning of the clause guaranteeing free speech
and expression is that Indian citizens are entitled to exercise that right wherever they
choose, regardless of geographical considerations, subject of course to the operation

18
19

Article 19 of Indian constitution


1978 AIR 597, 1978 SCR (2) 621

-MEMORIAL ON BEHALF OF THE RESPONDENT-

10

of any existing law or the power of the State to make a law imposing reasonable
restrictions in the interests of the sovereignty and integrity of India, the security of the
State, friendly relations with foreign States, public order, decency or morality, or in
relation to contempt of court, defamation or incitement to an offence, as provided in
article 19(2). The exercise of the right of free speech and expression beyond the limits
of Indian territory will, of course, also be subject to the laws of the country in which
the freedom is or is intended to be exercised.

I am quite clear that the Constitution does not confer any power on the executive to
prevent the exercise by an Indian citizen of the right of free speech and expression on
foreign soil, subject to what I have just stated. In fact, that seems to me to be the crux
of the matter, for which reason I said, though with respect, that the form in which the
learned Attorney General stated his proposition was likely to cloud the true issue. The
Constitution guarantees certain fundamental freedoms and except where their exercise
is limited by territorial considerations, those freedoms may be exercised wheresoever
one chooses, subject to the exceptions or qualifications mentioned above.

-MEMORIAL ON BEHALF OF THE RESPONDENT-

11

PRAYER

WHEREFORE, in the light of facts stated, issues raised, arguments advanced and authorities
cited, it is most humbly prayed before this Honble Court
1. Respondent prays before the court to uphold judgment given by the Honble of High
Court.
2.

That hunger strike is a criminal offence,

3.

Respondent prays before the honble court for considering states action, in the
interest of the people to meet the ends of justice.

4.

Any other order as the Honble courts deems with.

All of which is most respectfully submitted.

-MEMORIAL ON BEHALF OF THE RESPONDENT-

12

Council for the Respondent

-MEMORIAL ON BEHALF OF THE RESPONDENT-